Page 60 - Print 21 Magazine Sep-Oct 2021

Law
What will happen
to your super when you die?
Print21 resident legal eagle Wal Abramowicz uses a recent case to highlight the need to get your super in order.
In 2019 a Victorian Magistrate believed he had found love. He left his wife of many years for his clerk, a Ms Petrie. He was 68, she was 23. The Magistrate
was happy with the way things were going and decided to propose to Ms Petrie. In an exuberant spirit, he made a social media post announcing the engagement to his young fiancée.
Through the social media
post, the media became aware of
his love life and began running stories expressing outrage at the relationship. In a tragic turn of events, Ms Petrie died not long after the media storm, being hit by a car.
The magistrate returned to his former wife following Ms Petrie’s death. In his mourning he decided to consider what he could claim from his one-time lover’s estate. Ms Petrie was 23 years old, had few assets to her name but had left her superannuation including a death benefit of over $180,000.00 to her mother, who had been struggling financially for many years.
The magistrate asserted that as
he was Ms Petrie’s de facto partner, he was her dependant and could claim the entire death benefit. The magistrate said that he did not want to give any of the death benefit to Ms Petrie’s mother as she would not give him Ms Petrie’s ashes.
Above
Ms Petrie’s super fund agreed
with the magistrate and ignored her wishes to have her death benefit paid to her financially strained mother. The super fund found that as the magistrate was Ms Petrie’s de facto partner, he was to be considered a dependant. The whole death benefit would be paid to the Magistrate, who earned $324,000 a year.
are decided on a range of factors, including whether you have had
a close personal relationship, lived together, provided financial support, or provided domestic or personal care.
A binding death benefit nomination is the most effective way to avoid confusion in these circumstances.
It is up to a super fund to accept the binding death benefit nomination in accordance with the terms of its deed. Where they do accept binding death benefit nominations, super funds must follow the instructions.
Had Ms Petrie had a binding death benefit nomination in favour of her mother, the fund would have been required to give the funds to her rather than the magistrate.
Lawyers have an important role to play in guiding you through the estate planning process. Expertly drafted wills and binding death benefit nominations can avoid expensive and drawn-out disputes, ensuring your final wishes are followed. 21
Wal Abramowicz practices with Fox & Staniland Lawyers, Gordon, NSW
Sort out your super: Wal Abramowicz
“Super funds are different to other assets, as when you die their distribution is often not decided by your will, but rather by deed of the super fund.”
This incident is an important reminder of the complexity of the superannuation system. Super funds are different to other assets, as when you die their distribution is often not decided by your will, but rather by deed of the super fund. This can mean that even though you have made a will stating where you want your assets to go, the super fund can make a different decision, particularly where there
are dependants.
Dependants, for the purposes of
superannuation are spouses, any child, or any person who you have had an interdependent relationship with. Interdependent relationships
60 Print21 SEPTEMBER/OCTOBER 2021