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D. Coleman
D. Coleman, Lawyer
Category: Australia Law
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Experience:  BEc(SocSci).LLB
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What is definition of next of kin in Western Australian law?

Customer Question

What is the definition of next of kin with regards  to  Western Australian law, outside of the immediate family (mother, father, brother/sister or direct children)?

Submitted: 6 years ago.
Category: Australia Law
Expert:  D. Coleman replied 6 years ago.

Although next of kin is sometimes defined in legislation, it is a common law term that has traditionally meant the closest relative by blood or marriage. The Western Australian legislation which defines this term is:

  • the Coroners Act 1996 (WA) - which governs objections to post mortems, defines it in the following way:

(5) In this section, unless otherwise prescribed, senior next of kin in relation to the deceased person means the first person who is available from the following persons in the order of priority listed -

(a) a person who, immediately before death, was living with the person and was either -

(i) legally married to the person; or

(ii) of or over the age of 18 years and in a marriage-like relationship (whether the persons are different sexes or the same sex) with the person;

(b) a person who, immediately before death, was legally married to the person;

(c) a son or daughter, who is of or over the age of 18 years, of the person;

(d) a parent of the person;

(e) a brother or sister, who is of or over the age of 18 years, of the person;

(f) an executor named in the will of the person or a person who, immediately before the death, was a personal representative of the person; or

(g) any person nominated by the person to be contacted in an emergency.

  • the Human Tissue and Transplant Act 1982 (WA) - which governs consent to organ donation after death.

senior available next of kin -

(a) in relation to a child, means the first in order of priority of the following persons who is available at the time -

(i) if the child has both a spouse, and a de facto partner who has attained the age of 18 years, the spouse or de facto partner with whom the child is living as a spouse or de facto partner;

(ia) the spouse, or de facto partner who has attained the age of 18 years, of the child;

(ii) a parent of the child;

(iii) a brother or sister, who has attained the age of 18 years, of the child;

(iv) a guardian of the child;

and

(b) in relation to a person other than a child, means the first in order of priority of the following persons who is available at the time -

(i) if the person has both a spouse, and a de facto partner who has attained the age of 18 years, the spouse or de facto partner with whom the person is living as a spouse or de facto partner;

(ia) the spouse, or de facto partner who has attained the age of 18 years, of the person;

(ii) a son or daughter, who has attained the age of 18 years, of the person;

(iii) a parent of the person;

(iv) a brother or sister, who has attained the age of 18 years, of the person;

Customer: replied 6 years ago.

The question is related to my brother who passed away on Saturday unexpectedly and has not left a will, however his girlfriend (to whom he was recently engaged, within three weeks prior to his death), is not permitting either myself or other family members (parents) to claim his personal effects as she is claiming "next of kin" status. Similarly so she has objected to a postmortem examination of my brother's body, which was expressly against the families wishes and at the request of the Heart Transplant unit in Perth (he had a heart transplant four years ago) - whilst I understand this in relation to the Coroner's Act. I've tried to find any reference which may validate or invalidate her claim of next of kin, from a legal standpoint, that would allow us to claim his personal effects and start arranging his affairs in proper order.

Expert:  D. Coleman replied 6 years ago.

I am sorry to hear of your loss. In relation to your brother's possessions, if a will is available, it is the first thing that would be used to identify who is entitled to your brother's personal effects. If there is no will or it was silent in relation to his personal possessions then his estate is subject to the rules of intestacy. These are quite complicated, but essentially mean that the estate is divided up amongst close family members in various shares depending on the value of the estate and the types of relations who were the family of the deceased person. The rules are found in the Administration Act 1910 (WA) here:

http://www.austlii.edu.au/au/legis/wa/consol_act/aa1903173/s14.html

If the person did not have a will, someone also has to apply for letters of administration which makes them the executor of the estate. This is done through an application to the Supreme Court of WA. If there was a will, it should appoint an executor but the will still has to be filed with the supreme court and the court will then grant probate.

Unfortunately, from the act, the girlfriend's next of kin status derives from her living with him and/or being a 'marriage like relationship'. This would mean that certain things would be taken into account in determining what if they are in effect defactos. However, if they are engaged and have been together for more than a year and live together, it would be likely that they would be considered defactos. As you can see from the coroner's act, she would then have the right to object to a postmortem.