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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38979
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, this is to do with super and its distribution upon the

Resolved Question:

Hi, this is to do with super and its distribution upon the death of the policy holder.
The situation is this, The policy Holder Jai was a 40 year old woman with two biological children B and Z B is 17 years old and Z is 20 nearly 21. Jai (policy holder) began a realtinship with Damien 6 years agao and married Damien in 2010, Damien has twins from a previous marriage, there are no children from the relationship, (Damien has a lot of pension and payouts from the Navy as a vet). Jai passed away last month. Up until her death B (17) was living in the family home, and Z(20) was still being finanically supported by his mother while he lived in Tasmania. Upon the death of Jai Damien has moved house and started proceedings to obtain rights as the administrator for the superfund payouts (there are 3+ valid funds). Damien has not allowed B(17) to move in to the new home despite having some of his possesions there he is not making contact with the B(17) Damien also made sure that the Z(20) returned to Tasmania. Damien has according to third parties obtained $160,000.00 off one super fund. The biological children are being ignored by legal aid and other organization due to their age. What can the boys do to ensure that they receive their portion of the benefits/payouts. There was no will. Also what right to the boys have as far as the super payouts go as the super funds are paying out death benefits. Thank you
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Evening

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Is this a university assignment? If not can you please tell me the following?

Did the deceased leave a will? Did she have a binding nomination on her superannuation fund?

Customer: replied 1 year ago.

Hi its not a uni assignment its actually happening to my the boys. The man Damien is my biological cousin but I had made promise to the deceased to look after her boys as if they were my own,


The deceased had not will, and not nominated beneficiaries.


 


Hence why he has sought legal advice and is trying to make himself the administrator, he was also told that he had provide the death certificate.


 


Additionally there has been a claim made to the coroner by the deceased Aunty to look into her death as she believes that he had a hand in the deceased death.



The nearly 20 year old contacted legal aid in Tasmania and they didn't believe him, that he was entitled as her son, and that Damien was doing this. There is substantial amounts for the death payments, one at 350K and a potential 1.2M settlement and one that may have already been paid to Damien of 160K. the boys havent seen any of this money. The 20 year old is struggling as his mother the deceased used to give him money to live on to pay his bills, buy food etc.


 

Expert:  Leon replied 1 year ago.
Good Evening

I am sorry to hear about this.

What state in Australia did the deceased die in?
Customer: replied 1 year ago.

Victoria, they had just moved over from Perth in the last 18mnth - 2 years. Some of her super may have been in WA. Also there will be other super outstanding its just that the boys can get the details as Damien has the TFN and all the other details. She also served in the Military and may have some entitlements there as well.

Expert:  Leon replied 1 year ago.
Good Evening

Did she have any other assets and where are they located.

I have to do some research and get back to you tomorrow.

Customer: replied 1 year ago.

She was the only income earning Damien is on disability supports and had recived payouts from the navey. There is a motorbike and car both later models, that were in her name, there was also a second car that was in her name and Damien name. There is also a credit card, in her name and all the bills were in her name or joint names, there was a significant amount of expensive jewellery and at the time of her death $2000 worth of brand new clothing that had been unopened. Damien plans to sell all this. She had purchased on plans Iphone 5 and had just bought an apple mac. As far as I know there are not investment properties they rented the house. I also believe that he recently put all the cars in his name. That fine I can wait till you have had time its late as well! Thank you in advance for helping.

Expert:  Leon replied 1 year ago.
Good Morning

Do you know if anyone is applying for letters of Administration because she did not leave a will? If not is the Superfund prepared to release the funds without it and have they decided to give it all to the current husband?

The super fun will ask if there are other dependents and the answer is yes and her children should lodge a claim with them as well.

What is the current situation with this?

Also the children can complain to the superannuation Complaints tribunal if the Superfund has dismissed their claim.

http://www.sct.gov.au

They have a claim but they wont get it all the husband will get his share and depending on his needs he may get more than the children.


Customer: replied 1 year ago.

Good morning,


Yes he has stated that he has applied with the assistance of a Perth Lawyer for letter of Administration.


He would lie on the information.


 


The objective is that the boys get what they need we understand that he is entitled as well, but he is effectively getting rid of the her biological children so that they dont know.


 


We have no access to all the policy information of her TFN to check things out.


 


One fund was prepared to release the funds to him without the letter and we believe he has already $160K and the deceased biological children have not been given any of the money.


 


He currently receives a lot of money from the Navy for his payout as he was injured and he is working on get another compo payment by having it changed to a medical discharge.


 


How do the boys find out what super funds they can get in touch with? She held more than one policy. I will use the link you provided to get the boys to complain about the last one, that was disbursed without a thought to the fact the boys are dependents.



 

Expert:  Leon replied 1 year ago.
Good Afternoon,

The issue is the dependency of the children on their late mother.

If the contesting of the splitting of the assets is going to be done under Western Australian law the children are automatically entitled to a share.

The following link is from the Administration Act and determines who receives what under intestacy, which means if a person dies without a will.

http://www.austlii.edu.au/au/legis/wa/consol_act/aa1903173/s14.html

It is point 2 that you need to look at.

Her husband is entitled to the 1st $50,000, Interest at the rate of 5% per annum from the date of death until he receives his entitlement, one 3rd of what's left and the balance will be divided equally between her children.

This is the said amount under the rules of intestacy.

If either party wishes to dispute the shares, they have to show that they are in greater need and then it will be up to the court to decide.

The children of the deceased are going to have to get their own solicitor in Western Australia to represent them and lodge a complaint with the current husband solicitor advising that they will be contesting any application.

Their solicitor will need to ask relevant questions about the value of the estate is and can also write to the superannuation fund notifying them that there is disputes that they do not distribute any money.


Do they have a solicitor of their own in Western Australia?



Customer: replied 1 year ago.

Hi please refer to the fact that they are residing in Victoria she passed away in Victoria and that she has policy in Victoria and potentially some in WA will this make a difference?


 


She was working in aged care in Victoria for the last 18 months.


 


The children have tried to get a lawyer through legal aid, with legal aid determining the 20 year old was not telling the truth due to his age.

Expert:  Leon replied 1 year ago.
Good Morning

If the Letters of Administration Are Being commenced in Western Australia then the law that applies is Western Australia.

Legal aid will not assist them in this matter. There will need to get their own private lawyer.

Because the application is being commenced in Western Australia this is the law that will apply and all arguments will have to take place in Western Australia.

Is my understanding correct about where the husband the start of the application?
Customer: replied 1 year ago.

He has said that he contacted a lawyer in Perth as he access to free legal being a returned veteran on compo.

I have no proof that he even has the letter of administration or that he has a lawyer though.

 

Also as a final question, if the coroner open an investigation into his role in her death and is found to be responsible will this effect his entitlements.

Expert:  Leon replied 1 year ago.
Good Morning,

Anyone that is very responsible for the death of another person loses all entitlements to inheritance of that person's estate.

The children need to make enquiries of the ATO to ascertain where the mother had superannuation and to contact the superannuation funds directly.

All they will require is the mothers last known address and the one prior to that and if they have it her date of birth and also her tax file number.

Is there anything else I can assist you with?
Customer: replied 1 year ago.

No thank you so much I appreciate it! I have a direction now and some idea how to get the ball rolling.

Expert:  Leon replied 1 year ago.
Good Morning,

I'm happy to be assistance and I wish you all the best.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38979
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Leon
Leon
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BEc Dip Ed, Dip Law (SAB) MTax (UNSW)