Szabo & Associates News & Updates

It is well observed that for many Australians, their superannuation, especially if it contains life insurance, can represent a significant part of their assets. What may be less well known is that superannuation does not automatically form part of an estate and does not pass according to the Will or intestacy laws. Superannuation death benefits are dealt with under their own complex rules, and disputes are becoming increasingly common.

When determining a contested Will, a Court has to consider many competing factors. In Cowap v Cowap, the Court had to weigh the moral obligation of a deceased husband to his wife after a long marriage compared to the obligation to make provision for his disabled and destitute adult son. The case illustrates that there are no inflexible rules in family provision claims with each case turning on its own merits with the long arm of ‘notional estate’ potentially playing a role.

In NSW, the Succession Act provides that certain people, particularly close family, can contest a deceased’s Will if they have not been properly provided for. As such it is not possible to say that a person can legally prevent their Will from being contested by an ‘eligible’ person.

Most people recognise the importance of a Will but looking after it is important too. This may seem obvious but what does it mean in practice?

A death bed gift (sometimes referred to as ‘donatio mortis causa’) is a gift of an asset given before a person passes away. It is considered to be outside the estate, meaning that, even if a person has been promised a particular item in the Will, they will not receive it. As can be imagined this can become a source of conflict.