What do these have in common?
They were all key ingredients in a recent case before the Queensland Supreme Court.
Robert thought his estate planning was in place.
After all, Robert had:
- A Will;
- A Death Benefit Nomination to deal with his Self Managed Super Fund; and
- An Enduring Power of Attorney.
Sadly, Robert fell off a ladder, suffered a brain injury and lost capacity.
Robert’s wife then also died unexpectedly.
Robert’s Superannuation Nomination didn’t really cater for the unexpected passing of his wife.
Robert’s Enduring Power of Attorney gave his Attorney an express power to “renew” Robert’s Superannuation Nomination.
Could Robert’s Attorney simply “renew” Robert’s existing Nomination or could the Attorney actually “change” the Nomination and the percentage received by the beneficiaries under it?
The Court ultimately found the dictionary meaning of “renew” was broad enough to allow Robert’s Attorney to make a Superannuation Nomination that was different to the one Robert had made.
There were a lot of other issues at play in the Court proceedings, but the clear take away message is that you shouldn’t attempt to do your estate planning without legal advice…..