Death of Applicant in Contested Will

If the applicant, in a family provision claim that contests the will, dies either before or after the orders are made it could have a number of consequences.

The position is not perfectly clear and at least two views emerge. The first is that the right of an applicant is personal so that if the applicant dies then the cause of action falls away. Another view is that due to the legislation that deals with survival of actions the right subsists. As at the time of writing the position in New South Wales is not perfectly settled.

Even if the right survives, which is not certain, then there is a good argument that as the objective is to provide adequate provision the quantum of any claim would need to be reduced as the applicant will have reduced needs.

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