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QLD Superannuation of Deceased Brother - Ensuring Funds are Held by Independent Trustee?

Discussion in 'Wills and Estate Planning Law Forum' started by Bails, 19 November 2015.

  1. Bails

    Bails Member

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    I am my deceased brother's executor of will. He included a clause in his will that his superannuation funds should go to his 2 daughters (aged 10 and 8). The Super Fund has a Beneficiary Authority which agrees with this instruction.

    He divorced his wife (the children's mother) 7 years ago and she has the 2 daughters and has been in another relationship. When she became aware of the Superannuation funds ($500K+) she requested the Super Fund pay the money to her.

    The Super Fund provided a cheque payable to the children which the ex-wife deposited to a trustee account which she controls. When I challenged the Super Fund they stated, "they didn't want to make the natural mother jump through hoops to access funds for the children".

    She has now spent a considerable amount of the money on property and other luxuries which she claims are benefitting the children. Is there no control or legislation that would protect the children's interest and ensured these funds are held by an independent trustee until the children are 18?
     
    jaksprat likes this.
  2. Therese

    Therese Well-Known Member

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    Hi Bails,

    My understanding is that there are different types of trusts, and depending which type it is will determine how the mother can spend the inheritance.

    Some types give the parents discretion to use the money for the child as they see fit, or others have restrictions that day to day expenses cannot be covered.

    Do you know which Super Fund the trust was held with? I would suggest that you find out the conditions imposed by the Super Fund and see if you believe the mother is breaching them.

    Depending on your findings you may have a claim for breach of trust - I would recommend consulting a lawyer to discuss your circumstances. See Get Connected with the Right Lawyer for You
     
  3. Bails

    Bails Member

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    Thanks, Therese. The super fund simply paid the full super holding to the ex-wife who then deposited the funds into a simple bank account set up as XXXX trustee for the 2 children. No instrument of trust involved at all. She has full control of the funds and answers to no one.

    I live in WA and was astonished at the super funds action given the 2 children were minors ...regardless of the fact that the ex-wife was their natural mother (parent) and guardian.
     

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