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My daughter died last year in a collision with a truck. She…

Customer Question

My daughter died last year...

My daughter died last year in a collision with a truck. She was five times over the legal limit making her insurance void. She and her husband were separated however he has been paid her superannuation by Westpac who exercised its right to make this discretionary payment to him as her partner (I understand Queensland law does not recognise a ""separated"" status.)
My question is can the insurance company for the truck (which was written off) make a claim against this payment even though not paid into my daughter's estate. I fear her death benefit may be paid to her estranged husband (she had him down as her preferred beneficiary) also and not get paid into the estate .
I understand that if the death benefit is paid into the estate the truck insurance company is entitled to make a claim.
I guess put simply is he, as he is still legally recognised as her spouse, responsible for her debts.

Submitted: 13 years ago.Category: Australia Law

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2/6/2010

Solicitor: Leon, Solicitor replied 13 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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had your daughter left a will?

Customer reply replied 13 years ago

She had made a will in 2002 making her brother executor but when she married in 2007 this will became void and she had not made a new will.

Solicitor: Leon, Solicitor replied 13 years ago

You need to speak to a Solicitor that does Succession work (wills and probate).

The Superannuation fund should have been informed that your daughter had been separated from her husband and told not to distribute the money.

I assume they paid it to him because your daughter had made a binding nomination.

You should also have applied for Letters of administration because the will was invalidated because of the marriage. This way you would be appointed as the administrator of your daughters estate.

You may have to go back to the court and seek an order for the money form the superfund to be returned by her ex husband.

You need to speak to a Solicitor about what you need to do to show that they had separated.

contact the law society in Victoria and they will refer you to someone

http://www.liv.asn.au/

I hope this is of assistance and if so please click on the accept button

If you do not have

Customer reply replied 13 years ago

The superannuation company was notified to not distribute funds and I have put through a solicitor (I am in Queensland not Victoria) lengthy submission with 7 statements from family and friends stating the acrimonious nature of their separation. He threw her out of their rented premises and had the locks changed within 8 hours. She was living with me at the time of of death and is survived by a brother, sister, niece and nephew and both she and her husband were seeing other people.

I realise that if the payment is paid into the ""estate"" the insurance company for the truck is able to make a claim against the estate.

I guess what I am asking is I don't want the money but I do not want her estranged husband to receive it and want to know if he does is he, as her spouse (if that is the grounds they pay him on) obligated to pay her debts.

Solicitor: Leon, Solicitor replied 13 years ago

Here is the QLD law Society site

http://www.qls.com.au/content/lwp/wcm/connect/QLS/Home/

The law says that any benefits paid are paid after the dents of the estate are paid first.

Letters of administration should be obtained.

Also if there is a debt to the estate the superannuation money should be collected.

you can speak to the superannuation tribunal about this.

Your first point of call should be a solicitor and show him all the paperwork and get proper advise.

I hope this is of assistance and fi so please click on the accept button

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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