Court disputes can be complex enough without unexpected developments. But what occurs when one of the parties to your legal proceedings passes away before the case has concluded? While this situation isn’t common, it can significantly impact ongoing litigation and leave the surviving parties uncertain about how to proceed.
The good news is that NSW law has established clear frameworks to handle these circumstances, ensuring that legitimate legal claims aren’t automatically lost due to a death. Understanding your options and obligations in these situations can help you navigate what is already a challenging time.
Do Legal Claims Survive Death?
In most cases, yes. The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) establishes that the majority of legal claims survive the death of a party. This means that proceedings can usually continue by or against the deceased person’s estate, preserving the rights and obligations that existed before their death.
However, this rule isn’t universal. Certain types of claims cannot continue if a party dies, and understanding these exceptions is crucial for anyone involved in litigation.
How Court Proceedings Continue After Death
The Uniform Civil Procedure Rules 2005 (NSW) provide the practical framework for managing litigation when a party dies. These rules ensure that proceedings don’t automatically end simply because of a death.
Rule 6.30: Substituting the Deceased Party
When a party dies and the claim survives, the court can make orders to replace the deceased person in the proceedings. This typically involves substituting them with:
- An executor of their estate (if there’s a valid will)
- An administrator of their estate (if there’s no will)
- Another appropriate representative
Rule 7.10: Continuing Without a Formal Representative
This rule goes further, allowing proceedings to continue even when there’s no formal estate representative appointed. The court has the power to appoint a representative specifically for the purposes of the litigation, ensuring that cases aren’t unnecessarily delayed or dismissed.
What You Need to Do If This Happens
If a party to your proceedings dies, there are specific steps that must be taken:
- Notify the court immediately of the death
- Make an application to substitute the deceased person with their legal representative or another appropriate party
- Provide evidence of the death and the authority of any proposed representative
Once these steps are completed, the case can proceed as normal. However, it’s important to be prepared for potential delays as these administrative matters are resolved.
When Cases Cannot Continue
Not all legal claims survive death. Understanding these exceptions can help you assess whether your case falls into a category that would end automatically:
- Defamation claims: These are considered personal to the individual and cannot be pursued after death
- Criminal proceedings: If the accused person dies, criminal charges typically cannot proceed (though civil claims related to the same conduct may continue)
- Claims for loss of future earnings: These personal economic losses generally cannot be pursued after the party’s death
- Claims for exemplary damages: Also known as punitive damages, these are intended to punish wrongdoing and typically cannot be awarded against a deceased person’s estate
Practical Considerations for Your Case
While the law provides mechanisms to continue proceedings after a party’s death, several practical issues may arise:
Delays are likely as the court processes applications for substitution and new representatives get up to speed on the case details.
Estate assets may become relevant to the outcome, particularly if the case involves claims for damages that would be paid from or to the estate.
Settlement dynamics often change, as estate representatives may have different motivations than the deceased party had.
Get Expert Legal Guidance
Dealing with the death of a party during litigation adds complexity to an already challenging situation. The specific circumstances of your case will determine the best path forward, and the expertise of experienced litigation solicitors becomes even more valuable in these situations.
If you’re facing this situation in your legal proceedings, don’t try to navigate it alone. Our team at Complete Legal can help you understand your options, ensure all necessary applications are made promptly, and work to minimise delays to your case.
Need someone to have your back through complex litigation matters? Contact Complete Legal today for a consultation, or call us on [phone number] to discuss how we can help keep your case on track.
