Estate Planning: Voluntary Assisted Dying & Life Insurance
On 11 December 2019, history was made as Western Australia became the third jurisdiction in Australia, and the 19th jurisdiction in the world to legalise euthanasia by passing the voluntary assisted dying legislation.
The legislation is expected to come into force by mid-2021 and it will allow patients with a disease that would more likely than not cause death within six months (or 12 months for neurodegenerative diseases) to end their life with a lethal substance.
We take a look as to how the enactment of the voluntary assisted dying legislation may impact estate planning in terms of life insurance policies and the death benefit payout contained in many superannuation policies.
Most life insurance policies have clauses expressly excluding suicide, either for a specific period only or specifically excluding it altogether. Given that product disclosure statements rarely define the term suicide or intentional harm, the dictionary definition then applies. The Macquarie Dictionary defines suicide as:
- Intentional taking of one own’s life.
- Someone who intentionally takes their own life.
- To kill oneself intentionally.
Based on the above definition, it is clear that euthanasia under the voluntary assisted dying legislation can be classified as suicide and in turn would then preclude successful claims being made under a life insurance policy.
Thankfully, our legislative drafters, perhaps in foreshadowing these issues, have made an unequivocal statement in the Voluntary Assisted Dying Bill 2019 in confirming that “a person who dies as the result of the administration of a prescribed substance in accordance with this Act does not commit suicide”.
Generally speaking, accessing voluntary assisted dying shouldn’t affect life insurance policies or the receipt of the death benefit from a superannuation fund. This is because the person’s underlying illness will inevitably cause death and for the purposes of insurance, death ought to be treated as though the person died as a result of the illness. We are yet to be advised as to the practicality of utilising the voluntary assisted dying legislation and whether the death certificate will state the cause of death as the underlying terminal illness or whether it will in fact state euthanasia.
We are interested to see the practical implications of the newly enacted voluntary assisted dying legislation and to see how the insurance community responds to the same. In the meantime, we note that as this is an evolving area of law, we recommend that anyone who may have further queries about the voluntary assisted dying legislation seek independent legal advice from one of our dispute resolution practitioners on 08 9375 3411.
About the authors:
Tihana Nevjestic is a Perth lawyer and a Senior Associate at Lynn & Brown Lawyers. Tihana was admitted in the New South Wales Supreme Court in 2010 and has been practicing in insurance litigation and dispute resolution since moving to Perth. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
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