Australia:
Brother sues sister who pocketed 100% of their dads superannuation fund – which case won?
12 July 2017
Stacks Law Firm
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The Facts
Will divides estate equally between two
siblings
A case heard in the NSW Supreme Court concerned a battle between
two siblings over a self-managed superannuation fund which had been
established by their late father.
When the father died, the fund had approximately $1 million in
assets. In his will, the father left his estate to be divided
equally between his two children, who were an adult daughter and a
young son.
The father's will appointed his adult daughter the sole
executor of his estate, as his son was too young to be a
co-executor.
Daughter distributes assets of fund to herself, excluding her
brother
Before his death, the father also appointed his daughter as the
sole trustee of his self-managed superannuation fund. Despite her
late father's wish that his wealth be shared equally between
his daughter and his son, the daughter distributed all of the $1
million in the self-managed superannuation fund to herself, to the
exclusion of her young brother.
Was the daughter entitled to do this?
case a - The case for the daughter |
case b - The case for the son |
- I was the sole executor of my father's estate, and as such,
controlled the trustee of the self-managed superannuation
fund.
- The trust deed for my father's self-managed superannuation
fund conferred a discretion on me as trustee to determine how my
father's death benefit was to be distributed.
- My father did not leave a binding death benefit nomination
directing the trustee to distribute the death benefit equally
between myself and my brother.
- This meant that I could distribute the whole of the $1 million
death benefit to myself and did not have to distribute any to my
brother.
|
- My father's appointment of my sister as a trustee of the
self-managed superannuation fund was invalid because he did not
have the capacity to make that appointment.
- My father's will clearly stated that all of his estate was
to be divided equally between my sister and myself.
- Therefore, the death benefit payable from my father's
self-managed superannuation fund should be divided equally between
my sister and myself.
|
So, which case won?
Cast your judgment below to find out
Vote case A – The case for the daughter
Vote case B – The case for the son
Tony Mitchell
Will disputes
Stacks Law Firm
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guide to the subject matter. Specialist advice should be sought
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