Wills, Estates and Superannuation

My husband has recently passed and hadn’t left any beneficiary on his superannuation. As his Will was a mirror Will of mine, does that automatically entitle me to his super too?

People often assume that their superannuation and life insurance will automatically form part of their Estate when they die – the same as any real property they own or money in the bank.


Unfortunately, unless a person’s Will specifically nominates their Estate as the beneficiary of their superannuation, then the distribution of the superannuation will be at the discretion of the Trustee of the Superannuation Fund. Depending on the terms of the Trust Deed for the Superannuation Fund, even the nomination of the Estate as the beneficiary of the superannuation may be ignored by the Trustee.


In your husband’s circumstances, it appears that your husband did not nominate his Estate as the beneficiary of his superannuation and he did not have in place, any binding or non-binding nominations on the Trustee of the Superannuation Fund, setting out who was to receive the superannuation.


What is a Non-Binding Superannuation Nomination?


A non-binding nomination is when a person nominates the people they wish their superannuation to be paid to, in the event of their death. Obviously, a non-binding nomination does not mean that the Trustee of the Superannuation Fund, must distribute your superannuation to the persons you have nominated. The Trustee will still have a discretion to distribute, your superannuation to any spouse, child or other person, that was dependent on you at the time of your death.


What is Binding Superannuation Nomination?


A Binding Superannuation Nomination is different from a Non-Binding Superannuation Nomination as the Trustee of the Superannuation Fund is bound to distribute the superannuation to the person or persons nominated by you.


A Binding Superannuation Nomination needs to be renewed every three years, but when it is in force it effectively removes any discretion that was available to the Trustee to distribute your superannuation.


If there is no Binding Superannuation Nomination?


If your spouse or partner has died without a Binding Superannuation Nomination, then you need to seek legal advice as soon as possible on whether you will automatically receive their superannuation.


This advice will include a review of the Superannuation Trust Deed to ascertain how the Trustee can distribute the superannuation, as well as effective legal representation to the Trustee on your entitlement to receive the superannuation. Effective legal representation is extremely important in these cases, as evidence can be shown to the Trustee to give some indication of the wishes of the deceased. For example, as you and your husband had Mirror Wills, this could support the argument that your husband wished you to receive his superannuation.

If you have a legal problem regarding your entitlements under a Will or superannuation or life insurance, you need to speak to Frank Boitano, who has extensive experience in Wills and Estates Law. Call Barwick Boitano today on (02) 9630 0444 or email onfjb@bblawyers.com for an appointment.

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