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Family provision claim against state superannuation

Will & Estate Planning

About This Case

The High Court of Australia decision in Bell Lawyers Pty Ltd v Pentelow determined that self-represent lawyers cannot claim legal costs for their own work in litigation. We acted for the executor of an estate in a dispute relating to the amount of costs a self represented solicitor involved in the case could claim against the estate.
Estate DisputeFamily Provision Claim
Time Frame6 months
LawyerAdam Vainauskas

Summary

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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Challenge

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.

  • Family Provision Claim
  • Estate Disputes
  • Notional estate

Result

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.

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