The Facts

Will divides estate equally between two siblings

A case heard in the NSW Supreme Court concerned a battle between two siblings over a self-managed superannuation fund which had been established by their late father.

When the father died, the fund had approximately $1 million in assets. In his will, the father left his estate to be divided equally between his two children, who were an adult daughter and a young son.

The father's will appointed his adult daughter the sole executor of his estate, as his son was too young to be a co-executor.

Daughter distributes assets of fund to herself, excluding her brother

Before his death, the father also appointed his daughter as the sole trustee of his self-managed superannuation fund. Despite her late father's wish that his wealth be shared equally between his daughter and his son, the daughter distributed all of the $1 million in the self-managed superannuation fund to herself, to the exclusion of her young brother.

Was the daughter entitled to do this?

case a - The case for the daughter case b - The case for the son
  • I was the sole executor of my father's estate, and as such, controlled the trustee of the self-managed superannuation fund.
  • The trust deed for my father's self-managed superannuation fund conferred a discretion on me as trustee to determine how my father's death benefit was to be distributed.
  • My father did not leave a binding death benefit nomination directing the trustee to distribute the death benefit equally between myself and my brother.
  • This meant that I could distribute the whole of the $1 million death benefit to myself and did not have to distribute any to my brother.
  • My father's appointment of my sister as a trustee of the self-managed superannuation fund was invalid because he did not have the capacity to make that appointment.
  • My father's will clearly stated that all of his estate was to be divided equally between my sister and myself.
  • Therefore, the death benefit payable from my father's self-managed superannuation fund should be divided equally between my sister and myself.

So, which case won?
Cast your judgment below to find out

Vote case A – The case for the daughter
Vote case B – The case for the son

Tony Mitchell
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.