133Election where member dies

#### 133 Election where member dies (1) This section applies if an eligible member of the Defence Force: (a) is unable, because of any illness or any physical or mental incapacity, to make an election under section 132; or (b) dies before making such an election. (2) If the member is unable to make the election, the election may be made by a person acting on behalf of the member. (3) If the member dies and is survived by a widow or widower, the widow or widower may, subject to subsection (6), elect that this Act apply in relation to the member as if the member had, on the day immediately preceding his or her death, elected to become a member of the MSB scheme. (4) If the member dies and is not survived by a widow or widower but is survived by an eligible child or eligible children, a person acting on behalf of the child or children may, subject to subsection (6), elect that this Act apply in relation to the member as if the member had, on the day immediately preceding his or her death, elected to become a member of the MSB scheme. (5) An election under subsection (3) or (4) must be made on or before the day that would have been election day in relation to the member if he or she had not died. (6) If: (a) a member who has died: (i) had made an election under subsection 21(1), paragraph 63(1)(d) or subsection 64(1) or 89(1) or (2); or (ii) had received payment of an amount under a prescribed provision (within the meaning of section 137); and (b) at the time of his or her death, the member had not repaid: (i) the total amount that the member was required to pay to the Commonwealth under subsection 21(3), 63(2), 64(2) or 89(4) (as the case may be); or (ii) the total amount that the member had to repay to the Commonwealth under a provision of an enactment (within the meaning of section 137) because of the payment referred to in subparagraph (a)(ii); an election may not be made: (c) under subsection (3) by the widow or widower of a deceased member; or (d) under subsection (4) by a person acting on behalf of the eligible child or eligible children of the deceased member; unless the balance of the amount referred to in subparagraph (b)(i) or (ii) (as the case may be) that remains unpaid is paid to the Commonwealth. (7) If: (a) the widow or widower of a deceased member makes an election under subsection (3); or (b) a person acting on behalf of the eligible child or eligible children of a deceased member makes an election under subsection (4); the member is taken to have, on the day immediately preceding his or her death, elected under section 132 to become a member of the MSB scheme.