Home' Superfunds : Superfunds August 2018 Contents Prior to moving into the caravan the
couple had resided at the deceased
member’s grandparents’ and paternal
aunt’s home for the period of nine
months. There were conflicting assertions
about whether this was the start of their
‘spousal’ relationship or the continuation
of a ‘girlfriend and boyfriend’ relationship.
The aunt did everyone’s washing until she
complained and then the claimed spouse
took her washing home to her parents’
house. There was strong evidence the couple
were planning a life together, including
buying a home when they could afford to do
so, and starting a family.
Some three weeks after the accident the
claimed spouse was visiting the deceased’s father
when he asked her, which she did, to sign a ‘Form
D’ in which she described herself as the ‘partner’
of the deceased, and indicated an intention not
to be paid a benefit. A few days later, the legal
advisor of the claimed spouse wrote to the father
and indicated she was in no fit state to sign such
a document as she was still grieving the tragic
loss of ‘her beloved partner’. This letter also asked
that the father commit to not sending the form
to the trustee. The claimed spouse also wrote
to the trustee to withdraw her signature for the
form. Both the claimed spouse and the deceased’s
brother later applied to the trustee to be paid the
death benefit. The brother included the ‘Form D’
in his application.
The complainant was the father of the
deceased and he asserted the claimed spouse was
simply the girlfriend and that the trustee should
follow the non-binding death benefit nomination
and pay the benefit to the deceased’s brother.
The trustee submitted that the claimed spouse
was the deceased’s de facto, noting that under
the Superannuation Industry (Supervision) Act
1993 (SIS Act) there is no timeframe requirement
before someone is considered a ‘spouse’. The
trustee went on to say if it was wrong in its
decision regarding the de facto status, the claimed
spouse was, at least, in an interdependency
relationship in the context of the SIS Act. This was
because at the date of death:
1. she was living with the member;
2. evidence showed a close personal
3. there was evidence that one or the other
provided personal and domestic support; and
4. there was evidence of one or the other
providing financial support.
The trustee also pointed out that the brother
was not a ‘dependant’ in the context of the
trust deed and the SIS Act because there was no
evidence of financial dependency or that of an
interdependency relationship. It did not have any
evidence of the liabilities of the estate, so in the
circumstances, it was fair and reasonable to pay
the entire death benefit to the claimed spouse.
She was the only person to whom it could pay the
benefit under the trust deed once it discounted
paying the estate.
The trustee completely disregarded the signing
of the ‘Form D’, accepting the claimed spouse had
not received legal advice before signing the form.
Her explanation was completely reasonable.
Finally, the Tribunal noted in its findings that
the father in his tribute to his son at the funeral
[The Deceased Member] had so many people in
his life that loved and supported him. My parents,
his aunt [name] and uncle [name] and just
recently, [the Claimed Spouse] and her family.
I’ve met [the Claimed Spouse’s] family, and the
fact that her Dad has a bigger shed than mine,
confirms for me that [the Deceased Member] had
finally found the right girl.
The Tribunal held that the eulogy suggested the
claimed spouse was more than just a girlfriend.
In the circumstances, the Tribunal concluded the
trustee’s decision to pay the entire death benefit
to the claimed spouse was fair and reasonable. In
making this decision, the Tribunal pointed out the
guidance offered by the Federal Court in Stock re
Mandie v NM Superannuation at  FCA 612
to the effect that it is not unreasonable for the
trustee to follow its general practice of not paying
the LPR if the deceased member is survived by
She (the claimed spouse) was only 20 years
old when the member (aged 25) died
in a worksite accident. They were living
together in a caravan that she owned and
which was parked at her parents’ home,
but that arrangement had only existed for
26 days before the tragic accident. Was
she his spouse or girlfriend?
Superfunds August 2018
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