A father died leaving two sons. The younger son has found out that on his father’s death there
was a house in his father’s name worth about $600,000. The father held a joint bank account
with the older son of $150,000 which the younger son understands is not part of the estate as
it goes automatically to the joint account holder (the older son). The other main assets held by
the father include a life policy of $100,000 which has been assigned to the older son and
therefore is not in the estate, $200,000 held in a superannuation fund where the beneficiaries
are to be determined at the discretion of the trustees, and $50,000 in a superannuation fund,
where the older son has been named in a binding nomination as the sole beneficiary. The
younger son needs to know what assets are actually in the estate.
—
Comments by Wills & Estate Specialist – Terry Johansson
In all States of Australia, the money in the joint bank account, will pass automatically to the
older brother and is not in the estate. The life policy is also not in the estate as the brother is
the effective “owner”. Superannuation money is not in the estate, but is payable in respect of
the death of the deceased, and often goes hand in hand. When challenging the Will the
younger son will be able to bring his claim in respect of the house, but not the other assets. If
the deceased lived in New South Wales then to the extent that the estate is not large enough
to pay the Award to the younger son, half of the joint account monies may be retrieved by the
Court and used to pay the award. Superannuation monies are separate, and the younger son
may be able to claim same in addition to his claim against the estate. If he brings a claim for
further provision (challenges the Will) then the estate assets will be the house and the
$50,000 superannuation. He will not be able to access the funds that are subject to the binding
nomination, but will be able to make a claim in respect of the monies payable on a
discretionary basis.
00683.6/CQ/MAC/20121564/AU/C/XXX/-/MAR/SE/?
