On the death of a loved one their estate is distributed in accordance with either their last will or according to the intestacy laws, as applicable.  An application can then be made to the Supreme Court by eligible persons who seek orders altering the will or distribution pursuant to the intestacy laws.  With regards to superannuation and insurance payments such as life insurance, which is often held within a superannuation account, the benefit is distributed in accordance with a binding nomination, and if no binding nomination was made by the deceased, then the benefit is distributed as determined by the Trustee of the relevant superannuation fund.  Generally only the spouse (or spouses), children and dependants of the deceased, as defined in the Trustee Deed of the superannuation fund, are able to receive all or part of the benefit payable and only these persons will be considered by the Trustee as potential beneficiaries.

Given that the Trustee of a superannuation fund may ultimately decide who will receive the benefit of the superannuation or insurance payments, it is important to understand the factors that are taken into account by the Trustee of the superannuation fund in reaching its decision.  These factors include the following:

• The Trust Deed of the superannuation fund, in particular the definition of “defendant” contained in the trust deed;

• All potential beneficiaries of the funds which will include the children, spouses and dependents of the deceased;

• The financial circumstances and needs of each potential beneficiary;

• Any assistance provided by each potential beneficiary to the deceased, for example care and emotional support;

• The nature of the relationship between the deceased and the potential beneficiaries, and any disentitling conduct on behalf of each potential beneficiary, for example, whether the deceased and the potential beneficiary were in regular contact or whether they had been estranged for some time;

• Whether the deceased had a legal obligation to support any of the potential beneficiaries, for example any biological children under 18 years of age; and

• The wishes of the deceased, in particular any nomination made by the deceased and the wishes of the deceased as contained in their will.

The procedure to appeal the decision of the Trustee of a superannuation fund is as follows:

• Request that the Trustee review its decision.  This will be an internal process within the superannuation fund and there will be a certain time frame within which the application for review must be made.

• If one is still not agreeable with the decision made by the Trustee on review, the next step is to lodge a complaint with the Superannuation Complaints Tribunal.  The Tribunal is given all of the powers, obligations and discretions of the Trustee of the superannuation fund.

The Superannuation Complaints Tribunal will review the Trustee’s decision and either affirm it as correct if satisfied that the decision was fair and reasonable in the circumstances or substitute its own decision in the place of the Trustee or refer to the matter back to the Trustee for further consideration by the Trustee in accordance with the Tribunal’s directions.

• Finally, an appeal can be lodged with the Federal Court of Australia, but only on a question of law.  The ground of appeal cannot simply be that the applicant is not happy with the Tribunal’s decision.  Strict time limits apply in relation to an appeal to the Federal Court.

Charmaine Feggans is a Solicitor employed with Zande Law, Solicitors specialising in the drafting of Wills and administration of Deceased Estates. Please feel free to review our firm and staff profiles at www.zandelaw.com.au

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.