Our client was an adult son of the deceased. The deceased had left a small estate but had relatively superannuation entitlements from State Super. Our client had been left no provision under his father’s Will who had gifted all of his estate and superannuation entitlements to other family members.
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Previous lawyers had advised our client that his case was difficult due to the nature and value of the estate. The Court has wide powers to claw other assets outside of a deceased’s assets, for example, superannuation entitlements. The deceased’s superannuation was held in State Superannuation which does not fall within the scope of the Superannuation Industry (Supervision) Act 1993 and has key differences in the potential beneficiaries of a deceased’s superannuation. A dispute arose as to whether the deceased’s superannuation would be available for our client’s claim.
We were able to settle our client’s family provision claim against the estate. We first established that it was significantly clear within the provisions of the family provision claim legislation that the State Superannuation entitlements were notional estate. Generally, State Superannuation entitlements cannot be paid to the estate of a deceased member but must be paid to a specific eligible person. Notwithstanding these restrictions of the distribution, a combination of the family provision claim legislation and the NSW Superannuation Act (Superannuation Act 1916) would allow the entitlements to be paid to the estate for the purpose of a family provision claim. After establishing the minimal estate and superannuation entitlement were available for our client’s claim, the matter settled on the basis of a larger valued estate.