Jill’s husband died several years ago. She now owns the family home in Coffs Harbour and has accumulated a substantial superannuation fund.
Jill’s son Robert lives nearby and visits her most days to help her with various things including shopping and household maintenance. Robert is also concerned for Jill’s health.
Jill has two other children who have moved to Brisbane and have had very little contact with her for many years.
When Jill dies, Robert discovers that he is appointed as executor and Jill’s estate is to be distributed to her three children equally. Jill’s superannuation fund does not hold a valid binding death benefit nomination.
Robert feels that given his assistance to his late mother over the years and the lack of support from his two siblings, that he should be entitled to a greater share of his late mother’s estate.
Robert makes a claim against the funds held by his late mother’s superannuation fund requesting for the whole of the funds to be paid to him. He makes persuasive submissions to the superannuation fund who ultimately pays the “lion’s share” to him.
Given Robert’s assistance towards the maintenance of the family home and his regular attendances there, he also wishes to purchase the property rather than see it sold to a third party.
Robert’s siblings obtain legal advice regarding Robert’s actions and shortly thereafter, commence proceedings against him for the recovery of the superannuation funds that were paid to him and an order restraining him from purchasing the family home.
The matter cannot be resolved between the parties and the court decides that as executor, Robert has an obligation to have the whole of the balance of the superfund paid to the estate, rather than advancing his interests above those of the beneficiaries.
The court also orders that without the fully informed consent of the beneficiaries, an executor cannot purchase property from the estate under the “self-dealing” rule.
Unfortunately for Robert, the family home is placed on the market and he only receives a one third share of the whole of the estate including the superannuation fund.
If Jill had appointed a different executor, these problems could have been avoided.
