superannuation deceased estates conflicts

McIntosh v McIntosh [2014] QSC 99

What is the position where the deceased’s legal personal representative (eg, executor) seeks to have the deceased’s superannuation paid to them personally as a dependent of the deceased, rather than to the deceased estate?  A recent Supreme Court decision may shed some light.

The Facts

The deceased died a single man at the age of 40.  He suffered from bi-polar disorder and lived with his mother, who cared for him.  The deceased’s parents had separated when he was about 6 and the deceased had lived with his mother for most of his life.

The deceased did not leave a Will.

His mother was appointed Administrator of the estate, which was worth about $80,000.  The deceased also held funds in 3 superannuation funds, the benefits from which totalled about $454,000.  The deceased’s mother had been nominated beneficiary of the superannuation, but the nominations were not binding.

Under the laws relating to intestacy, the estate of the deceased had to be divided equally between the deceased’s mother and father.  (This is the same in WA – see here.)

However the superannuation benefits did not form part of the estate.  The deceased’s mother applied and was successful in having all of the superannuation paid to her personally.

Following enquiries from the solicitors for the father of the deceased, the mother made an application to the Supreme Court seeking a declaration that she was entitled to receive the superannuation death benefits.

The Court’s Decision

The Court held that in having the death benefit paid to her personally, the mother had breached:

  • her duty to gather the assets of the deceased and administer them according to law; and
  • her duty to avoid a conflict between her personal interests and her duty as administrator of the estate.

The Court stated that an “administrator of an intestate estate has a duty to apply for payment of superannuation funds to the estate”.

The deceased’s mother was ordered to pay all of the superannuation benefits to the deceased’s estate.

The Court drew a distinction in the circumstance where a deceased’s will appoints a person as executor knowing that they have also appointed that person sole beneficiary under a non-binding death benefit nomination.  In that instance, the deceased can be assumed to have known and accepted that their chosen executor has a conflict of interest.

However, the same cannot be said when someone volunteers to act as administrator.

How Could this have been Avoided?

The outcome in this case may have surprised many people.  There are 2 factors which might have significantly changed the outcome.

If the deceased had put in place binding nominations naming his mother as sole beneficiary of the superannuation funds, then this situation may never have come about.

If the deceased had made a Will nominating his mother as executor then the Court may have taken a different view of the situation.

Finally, if the mother had not sought to become administrator of the estate, she could have pursued payment of the superannuation death benefits without putting herself in any conflict of interest.

Implications for You

This decision has highlighted several points:

  1. Executors and Administrators will be strictly held to their legal duties.
  2. Wills are important even when an estate is relatively small.
  3. The benefits of a binding nomination should be considered.
  4. In relation to SMSFs – it is important to consider who will control the SMSF after your death.


The content of this article is intended to provide a general guide to the subject matter.  Specialist legal advice should be sought about your specific circumstances. For more specific estate planning legal advice please contact us.

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