The Chairman of the Repatriation Commission has forwarded for advice the following memorandum:

The Commission would be glad to be favoured with your opinion in regard to its liability in respect of any undrawn instalment of a pension due at the date of a pensioner's decease.

The Commission inclines to the view-especially having regard to section 43 of the Act, which provides that a pension shall be absolutely inalienable whether by way or in consequence of sale, assignment, charge, execution, insolvency, or otherwise howsoever-that a war pension is granted with a view to the maintenance of a pensioner and not for the purpose of benefiting his heirs, and that it has power-if it thinks fit-to refuse to pay any instalments undrawn at the date of a pensioner's death.

In a case which has recently come under notice the widowed mother of a deceased soldier at the time of her death had not collected war pension amounting to £10. A firm of solicitors, representing one of her sons to whom probate of the will was granted and who was sole executor, made a claim for payment of the undrawn instalments of pension. The Commission approved of payment subject to deceased's estate being insufficient to meet its liabilities. Subsequent inquiries by the Deputy Commissioner disclosed that the assets of the estate-exclusive of uncollected war pension-amounted to £556 0s 4d and liabilities £20 10s 2d, leaving a net value for probate purposes of £535 10s 2d.

In another case which the Commission has recently had under notice, the Curator of the Estates of Deceased Persons claimed payment of undrawn instalments due at time of death of a deceased soldier. The Commission gave a similar approval to that in the first instance quoted, and upon the decision being communicated to the Curator of the Estates of Deceased Persons, that officer requested to be informed by what authority undrawn instalments due at death are not payable to an executor or an administrator.

Attention is invited to regulation 40 under the Australian Soldiers' Repatriation Act 1920-1921, which reads as follows:

Any undrawn instalment of a pension due at the date of a pensioner's decease, if applied for within six months after the decease, may be paid to such person as in the opinion of the Deputy Commissioner has a legal or equitable claim thereto. Provided that the Deputy Commissioner shall not authorize payment to any person who is not a legal representative of the deceased, until the Deputy Commissioner has satisfied himself that probate of will or letters of administration will not be applied for.

and it might be added that in each of the two cases mentioned application for payment of the undrawn instalments was not made within six months after the decease of the pensioner.

Reference might also be made in this connection to opinions given by you on 4.4.1910 and 26.4.1910 regarding payment of an instalment after date of death of an old-age pensioner, which, it might be considered, have some bearing on the subject.

In my opinion the restriction on alienation of a pension provided by section 43 of the Act extends to any alienation under any law relating to succession on death. I am, therefore, of opinion that, apart from regulation 40, the personal representative of a deceased pensioner is not entitled to be paid any instalments of a pension undrawn at the death of a pensioner.

As regards regulation 40 I think that the opinions expressed by me on 4 April 1910, and 26 April 1910, respectively, with respect to a similar regulation relating to invalid and old-age pensions, apply to the case of pensions payable under the Australian Soldiers' Repatriation Act 1920-1921.⁽¹⁾

Following those opinions, therefore, I am of opinion that payment of any undrawn instalment of a pension should only be made in order to discharge any obligation incurred in connection with the maintenance of the deceased pensioner, including any expenses in connection with the funeral of the deceased pensioner.

[Vol. 18. p, 298]

(1)Opinions [Vol.7, pp. 410 and 435 respectively] not published in Vol.1.

The regulation relating to invalid and old-age pensions was regulation 27 of the Old-age Pensions Regulations 1909 (S.R. 1909 No. 47), which read:

'Any undrawn instalment of a pension due at the date of a pensionerpensioner’s decease, if applied for within twenty-one days after such decease, may be paid to such person as in the opinion of the Deputy Commissioner has an equitable claim thereto. Provided that no payment shall be made of any amount of pension accrued after the last pay-day preceding the pensioner’s decease’.

In the opinion of 4 April 1910 Mr (as he then was) Garran stated:

‘I think that this regulation was only intended as an authority to pay an undrawn instalment in cases where it might be equitable that it should be paid for the purpose of meeting some obligation in connection with the maintenance of the pensioner’ and on 26 April 1910:

‘A claim by a person who is out of pocket in respect of funeral expenses is admittedly an equitable claim. If payment for certain services gives rise to an equitable claim it seems to me a fortiori that the performance of the services themselves would give rise to an equitable claim also.

I am of opinion therefore that funeral expenses may be paid if the Deputy Commissioner is satisfied that the claim is equitable . . . ’