NSW claim against deceased estate

Discussion in 'Wills and Estate Planning Law Forum' started by SJ Kim, 27 September 2018.

  1. SJ Kim

    SJ Kim Member

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    hello, im posting here to seek advice and help.

    Recently, my mum's partner commit suicide due to depression and she observed horrified and terrible scene.
    She was involved in the relationship for 17 years but didn't lived together, didn't have anything on both of their name (real-estate, bills etc).
    However they did spent time regularly and deceased had his last meal at my place.
    My mother was not an executor of the will.
    My mum is currently having so hard time. Even the community from after suicide care regularly contacts her and check whether she is ok but his family never contact her and avoid.She is currently unable to work and regularly visit his gp and psychologist to get better from post traumatic stress disorder.

    is there something we can do or claim against deceased estate?

    Thanks in advance.
     
  2. Tim W

    Tim W Lawyer
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    No, the estate is not liable for the distress/ trauma etc she has suffered
    because the deceased was a suicide.
     
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  3. Rod

    Rod Well-Known Member
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  4. Tim W

    Tim W Lawyer
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    Work through your elements.
    I say no. YMMV
     
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  5. Rod

    Rod Well-Known Member
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    Duty of Care - special relationship, reasonably foreseeable - possible tick.
    Breach of duty of care - possible tick, though many more facts needed.
    Calculus of negligence - possible tick, though many more facts needed.
    Causation - tick, based on OP post.
    Remoteness - likely tick.
    Recognised/diagnosed mental harm - likely tick.
    Defences - unknown.

    Too many unknowns to be confident but prima facie a cause of action exists and may be worth testing with a PI lawyer.
     
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  6. Tim W

    Tim W Lawyer
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    At risk of causing distress to the OP by turning this into a technical discussion....

    I suggest that a claim for negligence againt the estate of a suicide would likely fail
    because prima facie the deceased does (did) not owe a duty of care
    the individual plaintiff per se of a kind that would give rise to an action for negligence if breached.

    Put simply - a person does not have a duty at law to any other individual
    to stay alive.*
    No duty generally, and no duty in particular on the ground that
    their death would cause distress to one particular would-be plaintiff.

    Nor does a person have a duty to any other individual to die in a neat and tidy manner.
    No duty generally, and in particular no duty on the ground that
    the manner and circumstances of their death would cause distress to that particular would-be plaintiff.

    How, for example, how would a deceased who
    • was a victim of crime; or
    • was a victim of accident; or
    • was estranged from family, or
    • lived distant from family; or
    • lived in a remote location; or
    • lived a solitary life by choice; or
    • is/was socially isolated generally; or
    • who remains undiscovered for an extended period (days, months, even years)
    fulfil such a duty?

    Then of course, there is the question of proving (even on the civil standard)
    that the deceased was in fact of sufficient capacity for the duty to even enliven.

    Oh, and an action of this type has been contemplated before, and settled.


    --------------------
    * The exception of course is in the context of WHS,
    where a worked does indeed have a statutory duty
    to take reasonable care of their own safety
     
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  7. Rod

    Rod Well-Known Member
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    Thanks for your reply.

    We'll agree to disagree on whether a duty of care exists.

    I do agree there is no duty to stay alive, however there is a positive duty to avoid foreseeable harm to another. A legitimate question is whether a person committing suicide is of sound mind.
     
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