Friday, 13 February 2009

Just when you thought it was over- now the fight was over the son's super

Years after the husband and wife had separated and then divorced, their son, aged 17, died. He left behind about $80,000 worth of superannuation. He had no will and nominated his mother as beneficiary. Who was to receive it?

The mother obtained a determination from the trustee of the super fund that because she and the son were in an interdependent relationship (and because in the trustee's opinion the son and father were not), she should receive 100%.

Not surprisingly, the father didn't like that one bit and took the matter to the Superannuation Complaints Tribunal.

The Tribunal ruled that mum and dad were to get 50% each because, in considering interdependent relationships:

  • A close personal relationship-The mother had a close personal relationship with her sor.
  • They live together - While the sonspent some time with his father, he lived with his mother.
  • One or each of them provides the other with financial support-The mother provided financial support to the son.
  • One of each of them provides the otherwith domestic support and personal care-The mother provided domestic support and personal care.
  • However, when reviewing the factors set outin the regulations that are to be taken into account when determining whether or not an interdependency relationship existed, the Tribunal found that
  • many of the factors are either irrelevant(due to the parent child relationship) or are inapplicable in the circumstances (for example the mother did not own property jointly with the son or operate a joint bank account with him).
  • There was no indication that the son would permanently live with the mother, and whilst the parental relationship would be lifelong, there was no intention that any interdependency relationship (assuming for these purposes that such a relationship existed) would be permanent.
  • Both the mother and the father had a close personal relationship with the son and provided him with financial and other support. However, neither was in an interdependency relationship with him.
  • Therefore, a fair and reasonable distribution of the benefit would be for the mother and the father to receive equal shares.

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