When preparing a Will, the main goal is to give effect to the testator’s intentions. That is, to ensure the beneficiaries receive the assets or property that the testator gives them in their Will and that their wishes and desires are adhered to in accordance with their Will.
Unfortunately, it is never that simple. Preparing and drafting a Will requires a certain level of skill and knowledge of the competing laws and regulations relating to Wills and Estate Planning, but also other areas of law including, Family, Superannuation and Tax laws.
Although Will kits that are commonly available provide a quick, cheap and easy way to prepare your Will, when using these Will kits you expose you and your family to significant risks that can arise in preparing a Will without legal advice.
A recent decision of the Commonwealth Superannuation Corporation, which was widely reported in the news, has brought back into the spotlight the necessity to obtain expert legal advice when preparing a Will, making a Binding Death Nomination or creating an estate plan for you and your families future.
The Estate of Mr Leverton
It was recently reported and made its way across national news in Australia, the case of Daniel Leverton, a RAAF Serviceman who recently passed away leaving with most his estate in his Superannuation Fund, which was later claimed by his de facto partner.
Mr Leverton created a Will in 2008 leaving his entire estate to his former partner, Angela Watson, who was the sole beneficiary under the Will. During this time Mr Leverton accumulated retirement savings and insurance which was held in his superannuation fund in excess of $450,000. Although being asked by the RAAF to consider changing his Will before going overseas, he never changed his Will.
Tragically, Mr Leverton passed away after collapsing while surfing with friends on the Mid North Coast of NSW, and his family and friends assumed that his estate would pass to Ms Watson, who was the sole beneficiary under the Will. However, his current partner Ms Lewis made a claim on the estate for the funds held in Mr Levertons Superannuation Fund, which comprised the bulk of Mr Leverton’s estate.
Ms Lewis claimed that she and Mr Leverton were in a de-facto relationship, despite only living together for 9 months which is less than the 2 years that is normally required under the Family Law Act. Ms Lewis relied on a signed a Statutory Declaration stating he was in a de facto relationship with Ms Lewis, which his family argued was only made to avoid being posted interstate away from his family, and that he never intended for her to receive his estate.
The outcome was that Ms Lewis lodged a claim with Military Super, and was awarded $352,170, leaving his two daughters $49,664 each. This was appealed to the Commonwealth Superannuation Corporation, which upheld the decision and found that Ms Lewis had been living in a domestic relationship with the deceased before for nine months before he died. Evidence was supplied by Ms Lewis in support of her claim, which succeeded.
Despite Mr Leverton having a valid Will, he had not made a binding death nomination, nominating a beneficiary on his superannuation account – something that others have stated may have resulted in a different outcome for his daughters.
However, it was further reported by the Daily Mail, that Mr Leverton had not made a binding death nomination because his superannuation fund, Military Super, does not allow binding death nominations.
Binding Death Nomination
The recent case has brought into the spotlight the importance of knowing if your Superannuation Fund allows for a binding death nomination, and nominating a beneficiary.
Many people assume that if they have left a Will, that should deal with all of their assets, and are not aware of the requirement to nominate a beneficiary or the different rules and regulations that apply when dealing with superannuation funds.
However, prior to making a nomination, you should also consider and get advice on the tax implications, as well as other family law matters that may arise.
Although not all superannuation funds allow a binding death nomination, it is very important to find out if yours does, and if so, to make that nomination before it is too late!
In the midst of Seniors’ Week running from 19-26 August, the Queensland Law Society has condemned the use of “do-it-yourself” Will kits, and has strongly urged that everyone who is considering preparing a Will obtain the necessary legal advice to ensure you have your wishes recorded with the advice of a qualified solicitor to give you peace of mind!
With families and estates becoming more complex than in the past with several types of assets, superannuation or liabilities to account for, coupled with individuals living longer than ever, preparing your will via a Will Kit purchased online or at the newsagent will not be sufficient enough to protect your interests and disburse your estate as you wish.
Need help preparing a Will or making a Binding Death Nomination?
When making a binding death nomination or preparing a Will, careful consideration needs to be had to ensure you select an appropriate beneficiary and take into consideration the tax implications of such nomination, which will depend on the person nominated.
If you need assistance, feel free to contact Rockliffs Lawyers today for a confidential discussion with one of our Wills and Estates Lawyers located in Sydney.