The discretion of the trustee of a superannuation fund
to choose the recipient of a death benefit is a core principle of
estate planning, particularly where the benefits are in a
self-managed superannuation fund.
But the Queensland case of McIntosh v McIntosh 
QSC 99 has called this into question.
James McIntosh died with no will, spouse or children, and
$450,000 in death benefits in retail superannuation funds.
His mother Elizabeth was appointed administrator of his estate
and separately claimed the superannuation for herself. The trustees
of the fund agreed to pay all James' superannuation benefits to
her on the basis she was in an interdependency relationship with
James' father, John, challenged Elizabeth's right to
claim the funds for herself and argued she had a conflict as the
administrator of James' estate. In that capacity, he argued,
her duty was to claim the superannuation for the estate (where John
was entitled to half).
The Queensland Supreme Court agreed with the conflict argument,
and ordered Elizabeth to pay the superannuation she had received to
the estate, where it would be divided equally between her and
As a result of this decision, advisers should be cautious where
a person who may wish to be considered as a beneficiary of
superannuation benefits is involved with making the decision, or
may be the executor or administrator of the estate. There are a
variety of steps advisers can take to ensure benefits are paid as
intended despite conflicts that may occur.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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To guarantee some of his inheritance, he asked the court to make a "notional estate" order to reflect the joint assets.
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