Published 07 Oct 2015
MT was the widow of her late partner RM who died without a will. He had named MT in his superannuation to be his beneficiary. They lived in the area of Parklea in New South Wales in very modest conditions.
From a earlier relationship, RM had a child who suffered from physical disabilities. So as to provide him with some independence, a business was set up where he was able to derive income from.
The estranged son whom RM had not spoken to for 21 years was not a financial dependent of the deceased.
RM died in uncontroversial conditions. His de facto spouse MT immediately made claims against his superannuation to pay for simple things such as the payment of his funeral as well as his urn.
This financial struggle has taken the best part of 2 years due to a dispute between whether MT was entitled to all of the benefit amount or whether the estranged son, who suffers from a disability and who was not a financial dependent, was entitled to any of the superannuation.
Ultimately, the trustee made a decision that the benefits should be apportioned between the two 50% each.
In accordance with our instructions, we made long and lengthy submissions that the child was never a financial dependent and would only be entitled to 20% of the benefitted amount, while our client was entitled to 50% of the benefit amount.
Further considerations of medical reports and financial records were made by both parties.
The trustee, following a further 6 months of deliberation, again made a determination that upheld their earlier decision that the apportionment still should be 50%.
We provided advice to MT that we believe that she has a very strong claim and that it is more likely than not that she would succeed in the courts to receive at least 80% of the benefitted amount as she had been the de facto spouse for more than 4 years and also been a confidant of the deceased for in excess of 20 years.
Despite our advice, supported by Counsel, she made a decision and instructed us to accept the offer simply because the process had exceeded more than 2 years and she was financially and emotionally drained from this entire process.
As a consequence, MT will receive in excess of $150,000.00 clear to her.
Although she had a greater entitlement to the deceased benefits, this case is an example of how growling and emotionally draining a long and protracted case can lead to a smaller than expected resolution of a matter.