A superannuation fund is one method by which Australians can save for their retirement. Your employer sets aside money, 9.5% of your wage, for every year that you work and it is supposed to provide you with a fund to live off of once you retire. The more money you save, the more you will have to rely on when your retirement years roll around. You can withdraw money when you turn 65 or when you retire.
For many Australians, their superannuation is their largest asset. This is particularly true upon death. As the population ages, we commonly see more Australians working beyond retirement age therefore naturally increasing their superannuation balance. With this increase comes another issue – family disputes. When that superannuation forms part of an estate, many family members fall into dispute about how it's distributed. This often results in Will Estate disputes and the involvement of Will and Estate Lawyers when someone proceeds with challenging a will.
Is Superannuation Automatically Included In A Will?
The short answer is no, your superannuation is not automatically included in your Will. The reason for this is your Will covers the assets you own, such as savings, real estate, investments, vehicles, and other personal items. Your superannuation is held in trust and it's governed by law, therefore it is subject to different laws. Therefore, it is up to you to keep your superannuation fund instructions current and up-to-date. Your Will controls how your superannuation is distributed upon your death, but only if you make specific instructions about it in your Will.
Upon your death, the superannuation fund trustee will determine how to distribute your balance. It can only be distrusted to your dependents, and the law specifies who can be classed as a dependent. A dependent can be your spouse (or de facto partner), child, or an interdependency relationship. Under superannuation law this is defined as two people living together, a close personal relationship, whether family or not, or when one provides financial, personal, or domestic support or care to the other.
This is why you cannot simply mention in your Will who should receive your superannuation fund upon your death. You can, however, nominate the beneficiary of your choice with a binding death benefit nomination via your superannuation fund provider.
Can You Contest A Will Where Superannuation Has Been Included?
Ultimately, the answer is yes. If you are contesting a Will you should enlist the services of estate litigation lawyers. To avoid Will disputes, you should rely on professional advice. If you wish to contest a Will where superannuation has been included, then there is a path to do so.
If you believe that you are entitled to a larger portion of an estate or that the superannuation fund was paid to the wrong person, then you are entitled to an internal review within 28 days of being notified of the original decision. While there is no fee for doing so, it is wise to engage legal services to put your best case forward. A legal practitioner can ensure that you provide all of the relevant information to support your challenge.
If the trustee sticks to their original decision, then you can make a complaint with the Australian Financial Complaints Authority. You have 28 days from notification of the decision to file this complaint. It's a free service and the independent body works with both parties to resolve the issue. What it cannot do is come to a decision contrary to the superannuation fund's terms as it is bound by the superannuation fund's governing rules. You can seek legal advice, but you don't generally need legal services at this stage. If you fail at this stage, you can escalate your complaint to the Supreme Court.
To find out more, or for assistance, get in touch with our team today. We’re happy to discuss your options.