WA Superannuation - Mum's Nomination Not Valid?

Discussion in 'Superannuation Law Forum' started by Phanelope, 15 February 2018.

  1. Phanelope

    Phanelope Well-Known Member

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    Hi

    My mum recently passed and she had death insurance through her superannuation. Before she died, she made a nomination for me and my three siblings to receive her death benefit, however we have now discovered her nomination was invalid as we are not her “dependent” children. We have also been advised that her ex-partner, who she is still married to but has been separated from for over 4 years may have a more valid claim to her death insurance than we do.

    Mum has made a legal will and she has made it very clear that she doesn’t intend for her ex to receive a cent. Mum did try to get a divorce but could not afford it initially. She asked him to pay and he refused. Later, when she was able to get Legal Aid through the cancer council she simply ran out of time to organise the divorce.

    Her ex has not contacted her at all since they separated. He didn’t go to any appointments and didn’t help care for her at all, didn’t visit her at all when she was dying or attend her funeral, and didn’t pay any of the costs associated with Her illness or death.

    We are worried because mum would be extremely upset if she knew he got her death benefit, so my question is, does he have a chance? Is there any way I can encourage the super fund to simply put it into her estate and have it dispersed according to her will? Is there anything I can start preparing now to prove he isn’t entitled to the money?

    Edited to add: as far as we are aware her ex knows nothing about her death insurance or his potential to be a beneficiary.
     
  2. Rob Legat - SBPL

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    Usually in the case of a non-binding nomination, the superannuation fund's rules will set out how the fund will deal with paying the benefit. They could apportion it among identified beneficiaries, or pay it to the estate. You should get ahold of the super fund's rules and see what they say.

    If there's any concern, the executors of the estate should make contact with the fund and start paving the way - being aware that the super fund may ignore them where their rules are clearly stated.
     
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  3. Phanelope

    Phanelope Well-Known Member

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    This issue is still ongoing but I have updates.
    The super funds rules say without a binding nomination they will choose to pay between any dependents and her estate, taking into account the wishes expressed in her non binding nomination.

    Previously we were unsure if her ex knew anything about her super or would make a claim, but the fund has told me there is another “interested party” which could only be him. The super fund has not made a decision yet, and Wen aren’t sure what that decision could be, but we are concerned they are even considering a claim from him.

    She and her husband had been officially separated since 2012 (this is when she moved out) between 2012 and 2014 they were on again off again. In Mid 2014 they agreed it was over and mum first made mention of divorce. I have got copies of several emails written from my mum to her ex in 2015-2016 asking for a divorce. Firstly she wanted to go halves in the fee, but then she was asking him to pay full fee as she had no income. He did not respond although I know his email is valid.

    I also have email correspondence between mum and her super fund as she was trying to make a terminal illness claim. They had her details recorded wrong so she had to update them. They were giving her a hard time, not responding to emails for weeks and claiming her stat dec was valid, invalid, and then valid again (stalling tactics IMO). For this reason she could not update her beneficiaries or change anything on her account. They also said several times they were sending out the claim forms but she never received them. When she was in hospital she contacted them to find out if her details had at least been updated. When they confirmed they had she immediately updated her beneficiaries online as she was bedridden. She did print out the binding nomination form but died before she was able to complete it.

    We can prove that mum had intended to divorce her ex at least 2 years prior to her death, but couldn’t because of financial reasons. We can prove that mum was not able to update her beneficiaries earlier because the super fund was messing her around. She has made a non binding nomination that excludes her ex, and her ex was not financially dependent on her. Is this enough to encourage the super fund not to pay him? Is it worth giving this information to the super fund now, or should I wait to hear their decision first and then appeal it if necessary?
     
  4. Rob Legat - SBPL

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    I'd be giving them all the information. You've said they will choose between "any dependents and her estate". I assume her ex-husband is not a dependent under their rules, and you've said the children aren't considered dependent - so it should therefore go to the estate. If the estate proves to them he is not a potential beneficiary, that may prompt them into making a decision in your favour.
     
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  5. Phanelope

    Phanelope Well-Known Member

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    So will he have to prove he is financially dependent on her or is it enough for them to just be legally married? If I am able to access her tax and Centrelink records I could prove she had no spouse or dependents listed. I have access to her bank records and she definitely never gave him money or paid for his upkeep.

    She also gave money to my brother and I a fair bit shortly before she died, and she loaned money to my sister regularly over the past several years, and gifted it more recently. Would this be enough for us to be her dependents?
     
  6. Rob Legat - SBPL

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    If they were still legally married, I'd say they're going to start at him being the spouse for the purposes of payment. You'll need to establish the break.
     
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