1. INTRODUCTION
| QLD | 66 | WA4 | 4 |
| ACT1 | Pt 2 | NT5 | 2 |
| VIC | 29 | TAS | 27, 57, 58, 60 |
| NSW2 | Pt 2 | UK | |
| SA3 | 27 | NZ | |
14.1 Prior to the legislative changes discussed below, a deceased estate could not be sued in tort in relation to an act alleged to have been committed by the deceased for which only unliquidated damages were recoverable. This “rule” was described by the Latin maxim “actio personalis moritur cum persona” – a personal action dies with the person.6 The Queensland Law Reform Commission observed that this “rule” proved intolerable, particularly in the era of motor vehicle accidents.7 As already noted, this “rule” has been largely abrogated by statute. The effect of these statutory provisions is discussed below.
2. QUEENSLAND
14.2 The most recent legislative response to this “rule” is section 66 of the Succession Act 1981 (Qld) – based upon the recommendations of the Queensland Law Reform Commission in its report on The Law Relating to Succession.8 Section 66 of the Succession Act 1981 (Qld) reads:
Survival of actions
(1) Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after the 15 October 1940 all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate.
(2) Where a cause of action survives pursuant to subsection (1) for the benefit of the estate of a deceased person, the damages recoverable in any action brought –
(a) shall not include damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life;
(b) shall not include exemplary damages;
(c) in the case of a breach of promise to marry – shall be limited to damages in respect of such damages as flow from the breach of promise to marry;
(d) where the death has been caused by the act or omission which gives rise to the cause of action – shall be calculated without reference to –
(3) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against that person before his or her death such cause of action in respect of that act or omission as would have subsisted if that person had died after the damage was suffered.
(4) The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the provisions of the Supreme Court Act 1995, part 49 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under those Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).
(5) Nothing in this section enables any proceedings to be taken which had ceased to be maintainable before the commencement of this Act.
(6) An action which survives pursuant to subsection (1) against the estate of a deceased person may be brought against any beneficiary to whom any part of the estate has been distributed as well as against the personal representatives.
(7) Where an action is brought against a beneficiary to whom a part of the estate has been distributed that beneficiary is entitled to contribution from any beneficiary to whom a distribution has been made, being a beneficiary ranking in equal degree with himself or herself for the payment of the debts of the deceased, and to an indemnity from any beneficiary to whom a distribution has been made, being a beneficiary ranking in lower degree than himself or herself for the payment of the debts of the deceased, and the beneficiary may join any such beneficiary as a party to the action brought against him or her.
(8) Where an action is brought against a beneficiary (including a beneficiary who has been joined as aforesaid) whether in respect of an action which has survived against the estate or for contribution or indemnity, the beneficiary may plead equitable defences and if the beneficiary has received the distribution made to the beneficiary in good faith and has so altered the beneficiary’s position in reliance on the propriety of the distribution that, in the opinion of the court, it would be inequitable to enforce the action, the court may make such order as it thinks fit.
(9) In no case may a judgment against a beneficiary exceed the amount of the distribution made to the beneficiary. [note included]
3. OTHER JURISDICTIONS
14.3 Provisions similar to section 66 of the Succession Act 1981 (Qld) appear in all jurisdictions so there is already substantial, though not complete, uniformity in Australia in relation to the survival of causes of action.
14.4 The Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Western Australia deal with the survival of causes of action in separate legislation. Only Queensland, Victoria and Tasmania incorporate relevant provisions in their succession legislation.
4. ACTIONS AGAINST BENEFICIARIES
14.5 In at least one significant respect, the Queensland provision is different from the provisions in other jurisdictions. Section 66(6) to (9) of the Queensland legislation significantly extends the effect of the survival provisions. Those subsections enable an action that survives against the estate of a deceased person to be brought not only against the personal representatives, as in other jurisdictions, but also against beneficiaries to whom distributions have been made. The provision was recommended by the Queensland Law Reform Commission, which noted:10
The personal representative may distribute the estate paying attention to claims of which he has knowledge, and if he has duly advertised and does not know of a claim, he is protected. Creditors may pursue beneficiaries to whom distributions have been made but it is not entirely clear whether tort plaintiffs may.
14.6 Survival of actions provisions that simply refer to survival of actions against or for the benefit of the “estate” of the deceased person may be problematic if the term “estate” is read as meaning, as it has been held to mean in the context of family provision applications, the estate of the deceased in the hands of the personal representatives. On this reading, assets distributed to beneficiaries in due course are not part of the “estate”.11
14.7 The Queensland Law Reform Commission did not consider that the use of the term “estate” in survival of actions legislation was intended to add a further limitation period against claimants against estates by requiring the action to be commenced before the estate is distributed:12
In any case, if such a construction is possible, as it now is, we consider it to be undesirable in this context since it is an oblique way of importing a special and, to some extent, capricious limitation period into this branch of the law. ... [We] therefore recommend that it be stated clearly that the surviving cause of action may be brought against beneficiaries as well as against personal representatives.
The Commission further recommended:13
... that beneficiaries should only be liable to the extent of the distributions made to them, that they should be able to plead equitable defences (particularly laches) and that they should be afforded the defence of change of position ...
The Commission was of the view that such protections to beneficiaries should constitute an added incentive to claimants against estates “to come into the open and pursue their claims against the personal representatives promptly”.14
14.8 Where a beneficiary is pursued by a claimant against the estate, the Commission was of the view that the normal principles of application of the doctrines of contribution and indemnity should be expressed in the legislation. Thus, in the Commission’s recommendations that were implemented by section 66(7) of the Succession Act 1981 (Qld), a beneficiary is able to: seek contribution against other beneficiaries ranking equally with him or her for the payment of debts; seek indemnity from beneficiaries ranking below him or her for the payment of debts; and, bring co-beneficiaries into court so that the matter can be determined at one time.
5. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
14.9 The National Committee considered whether:
(1) the model legislation should contain a provision dealing with the survival of causes of action or whether that issue is better dealt with in separate legislation (as it is in the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Western Australia);
(2) the model legislation should include provisions to the effect of section 66(6) to (9) of the Succession Act 1981 (Qld).
6. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
14.10 The National Committee was of the view that a provision to the effect of section 66 of the Succession Act 1981 (Qld) in the model legislation would be a useful reference point for personal representatives, although the exceptions referred to in that provision would be better placed in other legislation in the respective jurisdictions because the law relating to each exception may differ between jurisdictions.
Proposal 70
A provision to the effect of section 66(1) to (5) of the Succession Act 1981 (Qld) should be included in the model legislation, but in a more generic form. There should be no reference to the exceptions (for example, defamation,15 mentioned in section 66(1) of the Succession Act 1981 (Qld)). The exceptions, which are not uniform between the various jurisdictions reviewed by the National Committee, should be set out in separate legislation in each jurisdiction.
Questions for discussion
14.1 Does case law adequately deal with the situations contemplated by section 66(6) to (9) of the Succession Act 1981 (Qld)?
14.2 Should a provision to the effect of section 66(6) to (9) of the Succession Act 1981 (Qld) be included in the model legislation?
14.3 If there is to be no reference to the exceptions in section 66 of the Succession Act 1981 (Qld) in the model legislation, does this affect the National Committee’s proposal in Chapter 8 of this Discussion Paper that it is not necessary for the model legislation to include a provision to the effect of section 52A of the Succession Act 1981 (Qld)?
Footnotes
1. Law Reform (Miscellaneous Provisions) Act 1955 (ACT).
2. Law Reform (Miscellaneous Provisions) Act 1944 (NSW).
3. Survival of Causes of Action Act 1940 (SA).
4. Law Reform (Miscellaneous Provisions) Act 1941 (WA).
5. Law Reform (Miscellaneous Provisions) Act 1956 (NT).
6. Kirk v Todd (1882) 21 Ch D 484 at 488-489; Quirk v Thomas (Executor of) [1916] 1 KB 516 at 530. See W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 923.
7. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 49.
8. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 49-51. The Commission recommended the repeal of an earlier provision to this effect, namely s 15D of the Common Law Practice Act 1867 (Qld), which had proved inadequate in certain respects.
9. Part 4 (Provisions from Common Law Practice Act 1867).
10. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 50.
11. For a discussion on the concept of “notional estate” see National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (QLRC MP 28, 1997) at 76-94.
12. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 51.
13. Ibid. See Succession Act 1981 (Qld) s 66(8), (9).
14. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 51.
15. See New South Wales Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) at paras 24-26; Australian Law Reform Commission, Report, Unfair Publication: Defamation and Privacy (ALRC 11, 1979) at para 107; South Australian Law Reform Commission, Fifteenth Report of the Law Reform Committee of South Australia to the Attorney-General Relating to the Reform of the Law of Libel and Slander (R 15, 1972) at 7 (para 6) for a discussion of particular issues concerning the exclusion of defamation.
