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Wills and Estate Planning

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‘Secret’ relationships, and not having a Will

Disputes over a deceased’s estate are complex, emotionally draining and may risk depleting assets that would otherwise be available for distribution to beneficiaries. This is why having a valid Will and a Binding Death Benefit Nomination (BDBN) makes good sense.

A Will determines how your estate is dealt with after you die. A Will can appoint a trusted person to administer your estate, nominate guardians for young children and direct who will receive your assets after your death.

A BDBN is a direction to the trustee of your superannuation fund to pay your superannuation and death benefits either directly to an eligible dependant, or to your estate. The BDBN puts you in control of nominating who receives these payments.

Without these documents, you may not have a say in the distribution of your estate or who receives your death benefits.

The consequence of not having a Will and BDBN was apparent in the case of Kahlia Boyd v Belconnen Concrete Pty Ltd atf Spinelli Trust Fund [2013] ACTMC 10.

The facts and the decision

The case considered a dispute between the mother and the girlfriend of a young man who tragically passed away in a work-related accident. The issue to be determined was whether the girlfriend (applicant) was entitled to receive the young man’s lump sum compensation benefits.

Whilst the primary consideration in the case concerned the correct definition of a ‘dependent’, ‘member of the family’ and ‘domestic partner’ under the relevant worker’s compensation legislation, it is an important reminder of the adverse consequences of not having a Will or BDBN.

The applicant claimed that she and the deceased had been in a domestic relationship for approximately eight months prior to his death. She gave evidence of having moved in with the deceased as well as various text messages and cards received from the deceased declaring his love and affection for her. The Court was told that she and the deceased had discussed a future together which included plans for marriage, children and buying a home. The applicant had been listed by the deceased as his emergency contact for his place of work.

The deceased’s mother denied the existence of a serious relationship or that there was any evidence of the applicant having co-habited with the deceased.

The evidence indicated that the applicant had very little to do with the deceased’s family, and that the deceased was reluctant to introduce her to his extended family.

Notwithstanding, the Court was convinced of the seriousness of the relationship and found in favour of the applicant, who was awarded a lump sum death benefit of $150,000.

Lessons learnt

This case may have been decided differently (or indeed probably would not have even gone to Court) if the deceased had a Will and BDBN.

Inheritance disputes are unfortunately common, particularly when a person dies intestate (without having a Will).

In such cases the distribution of an estate is dealt with by a statutory formula which attempts to reflect society’s expectations as to who should benefit from the estate. The problem with this is that such a formula does not always reflect what the deceased person would really want, and leaves out many contingencies that might affect the decision-making of the deceased.

Only by having a valid Will, can one have a definitive say in how your assets should be distributed when they die.

Without a Will, there is a risk that:

  • family members or friends miss out on an inheritance;
  • assets may be distributed equally between family members, which may result in insufficient provision for more needy beneficiaries;
  • assets could go to a family member even though you shared no significant or meaningful relationship with that person.

Similarly, dying without a BDBN can leave the distribution of your death benefits to chance. Without a BDBN, death benefits (comprising your superannuation balance and any life insurance) are paid to a legally-defined ‘dependant’ as determined by the trustee of your superannuation fund.

This discretion can be circumvented by completing a valid BDBN. This is a direction to the trustee of your superannuation fund to pay your death benefits to an eligible beneficiary or beneficiaries, or to your estate. Essentially, the BDBN overrides the discretion of the trustee, so that benefits are paid in accordance with your wishes, rather than at the trustee’s discretion.

Conclusion

It is arguable that both parties in the above case may have had a legitimate claim to the proceeds of the deceased’s compensation benefits. However, nobody will ever know who he would have wanted to benefit from this payment - the new love of his life (albeit of only a few months), his mother, or perhaps even a compromise of a half-share each.

Dying without a Will or BDBN creates unnecessary burden on your family and prevents you from having a final say in how your life savings and assets should be distributed. The unexpected and premature death of the young man in this case again illustrates that anyone over 18 should have an up to date Will.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email kwaddington@gwlaw.com.au.

      

 

 

 

 

 

 

       Ken Waddington                                                 Nicole Downs                                                                   

       Partner                                                                       Associate                                                                  

       (07) 5443 4866                                                     (07) 5443 4866                                                      

       kwaddington@gwlaw.com.au                       ndowns@gwlaw.com.au                                 

 

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