Robert and Joanne have been married for many years. They have three children together and their assets consist of their family home and a substantial amount of superannuation funds.
Sadly, Joanne passes away in her early 60s and Robert receives the whole of her estate.
Robert updates his will with the effect that the whole of his estate is to pass to his three children equally. He also completes a superannuation binding death benefit nomination in favour of his three children.
Several years pass and when Robert is in his late 60s he commences a relationship with Christine. They have dinner together most nights and often go out on various trips around Coffs Harbour.
After a year of seeing each other, Christine moves into Robert’s home. They have lived together as a couple for just a couple of months before Robert suffers a fatal heart attack.
Robert’s children consult a local solicitor who advises them that Robert’s will is valid and that they each receive an interest in the family home together with the rest of Robert’s possessions.
Unfortunately for Robert’s children, they discover that their father’s superannuation binding death benefit nomination lapsed after three years and that the distribution of their late father’s substantial superannuation fund is now up to the discretion of the trustee of the superannuation fund.
They also discover that Christine has informed the superannuation fund of her intention to make a claim against the funds. Their solicitor advises them that although Christine and their late father were in a “de facto” relationship for only a few months, there is no specific time threshold that applies to a claim against Robert’s superannuation. This is different to other areas of the law that dictate that a de facto relationship must exist for more than two years before any rights arise.
The trustee of the superannuation fund makes a determination to pay Christine 20% of Robert’s superannuation fund and given the costs involved in challenging the decision, Robert’s children accept the determination.
If Robert had a valid binding death benefit nomination in place at his death, his children could have been protected.
