Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 6 October 2018.
Jason and Kylie were married in 2007. Kylie gave birth to their daughter in 2009 and their son in 2012.
Unfortunately, Jason and Kylie separated in 2014 and are estranged at the time of Jason’s tragic death in a motor vehicle accident in February 2016.
At the time of Jason’s death, he has a superannuation fund with a modest death benefit of $60,000.
Prior to his death, Jason purports to make a binding death benefit nomination dividing his superannuation so that upon his death, his daughter receives 25%, his son receives 25%, his mother receives 30%, his father 10% and his estranged wife, Kylie receives 10%.
After receiving notification of Jason’s death, the superannuation fund decides that Jason’s binding death benefit nomination is invalid because neither of his parents were “dependents” under the legislation and are not his legal personal representatives (the executors/administrators of his estate).
The superannuation fund then decides that because the binding death benefit nomination is invalid they can exercise their discretion to pay the full $60,000 to Kylie as Jason’s legal spouse.
The representatives for the daughter and son appeal the decision to the Superannuation Complaints Tribunal. The Tribunal ultimately confirms the superannuation fund’s decision as fair and reasonable and Kylie receives the whole of Jason’s superannuation.
Jason could have avoided the problem by getting proper legal advice at the time he executed the binding death benefit nomination. If he had nominated his legal personal representative as the recipient of 100% of the death benefit, his superannuation would have been paid to his estate and dealt with under the terms of his will and in accordance with his wishes.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
