What is a superannuation family provision claim?

Published 14 Sep 2017

A loved one's accumulated superannuation savings could comprise a large proportion of their wealth, but did you know that an individual's retirement pot isn't automatically included as part of their estate in a will?

Super is often distributed to a beneficiary through a death benefit nomination, which means the fund member selects who they want to receive their money should the worst happen.

Meanwhile, some people choose to instruct the trustee of their superannuation to pay retirement savings directly to their estate, thus making it available for distribution to beneficiaries in accordance with the will.

But what happens when you pursue a family provision claim and the deceased selected the first method of distributing their super? You wouldn't be eligible to receive a share of their retirement savings, which could be substantial.

Can I make a family provision claim for superannuation?

Fortunately, superannuation can be ruled as part of the 'notional' estate of the deceased in NSW.

In other words, the courts may decide that an individual's super should be considered part of their estate, thus making their accumulated funds open to an inheritance dispute.

The court's powers are fairly wide ranging, and a notional estate order may be enforced for various reasons. One example is that the judge feels the deceased did not leave adequate provisions within their estate to support the maintenance, education and advancement in life of their dependants.

Notional estate orders may also arise if the courts believe the deceased transferred a number of their assets out of their estate in an effort to avoid fulfilling any potential family provision claims.

What should I do next?

If you are an eligible person under the Succession Act 2006, you are entitled to make a family provision claim against the estate of a loved one.

The inclusion of the deceased's retirement funds via a notional estate order is never guaranteed. Nevertheless, you should discuss your options with an experienced will disputes lawyer to see whether or not a superannuation family provision claim is possible.

Convincing the courts that the deceased's super should be added to their distributable assets through the will could significantly increase the value of the estate and any payments that beneficiaries receive.

For more information on family provision claims and superannuation laws, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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