- Eligible persons have a right to claim superannuation death benefits, but a conflict of interest can arise when a personal representative seeks benefits for themselves over the estate's claim.
- Recent court cases provide guidance for practitioners, distinguishing duties of administrators appointed by courts versus executors appointed in wills, and addressing conflicts between personal and estate interests for death benefit claims involving non-binding nominations.
- Practitioners should advise clients on potential conflicts and how to avoid or address them through will provisions, choice of representatives, and timing and manner of claims.
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The article discusses funeral homes being charged with long-term fraud related to pre-paid funeral contracts. It notes numerous consumer complaints about fraud, abuse, and high-pressure sales tactics aimed at the elderly. While pre-paying is meant to ease the burden on loved ones, salespeople often fail to disclose that the contracts don't actually cover all costs. The article also discusses a bill sponsored by Congressman Steve Southerland to exempt pre-paid funeral assets from being counted against eligibility for public assistance. However, critics argue the bill benefits Southerland's funeral home business and the industry. There are concerns that pre-paying funerals may not be a good financial decision for consumers.
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Probate is the legal process that is typically required after a death to ensure that the decedent’s assets are identified, located, and eventually transferred to the rightful beneficiaries or heirs of the estate. Another important aspect of the probate process, however, is addressing debts of the decedent. Learn more about debts in Texas in this presentation.
Owning Real Estate In A Revocable Living TrustDorothyKorszen
Owning real estate in a revocable living trust can avoid probate but there are considerations like ensuring homestead property tax exemptions are preserved, checking for due on sale clauses in mortgages, and being aware that placing homestead property in a trust may impact protections from bankruptcy claims. Placing property in a trust provides benefits but the document must be drafted correctly and asset protection, taxes, and impacts of two-trust estate planning should be discussed with an attorney.
This document provides information about various civil law matters including evictions, foreclosures, bankruptcies, and family law issues. It explains the processes for evictions, foreclosures, and bankruptcy filings. It also discusses legal aid programs in Texas, the Title IV-D child support enforcement program, and references additional resources for information on these topics.
This document provides an overview and analysis of challenges to the constitutionality of California's cap-and-trade program under the Global Warming Solutions Act. It describes the key components of cap-and-trade, arguments that the program constitutes an unconstitutional tax, and counterarguments that it is a lawful regulatory fee. The document examines this debate in light of restrictions on new taxes in the California Constitution and considers how courts might rule on the issue.
The United States District Court for New Jersey granted summary judgment in favor of St. Paul Fire & Marine Insurance Company in a coverage action. The court found that an attorney malpractice insurer was not required to provide coverage for a $1.4 million judgment against their insured. This was because the insured was on actual notice of the underlying legal malpractice claim prior to the inception of the claims-made insurance policy, based on a letter received from opposing counsel regarding potential legal action. While the plaintiff argued the letter was not a formal claim, the court found the insured was aware of facts that could reasonably give rise to a claim. Therefore, the claim fell outside the policy period and the insurer had no obligation to provide coverage or indemn
This document provides an overview of a presentation on life insurance cases involving disputed benefit claims related to sex, drugs, violence and other factors. The presentation addresses topics such as contract formation, contestability and rescissions, changes in an applicant's health status, and misrepresentations in insurance applications. Case studies are presented on issues such as when an insurance contract is formed, temporary insurance coverage, what information must be disclosed in an application, and standards for rescinding a policy due to misrepresentation or nondisclosure.
The article discusses funeral homes being charged with long-term fraud related to pre-paid funeral contracts. It notes numerous consumer complaints about fraud, abuse, and high-pressure sales tactics aimed at the elderly. While pre-paying is meant to ease the burden on loved ones, salespeople often fail to disclose that the contracts don't actually cover all costs. The article also discusses a bill sponsored by Congressman Steve Southerland to exempt pre-paid funeral assets from being counted against eligibility for public assistance. However, critics argue the bill benefits Southerland's funeral home business and the industry. There are concerns that pre-paying funerals may not be a good financial decision for consumers.
Contesting a Last Will and Testament in MissouriCharlie Amen
"Gaining a better understanding now of what a Will contest involves may help you understand the importance of
executing a well thought out and professionally drafted Last Will and Testament that will discourage would be contestants from challenging your Will. Learn more about contesting a last will and testament in Missouri in this presentation."
How Are Debts Handled After Someone Dies in TexasSteve P. Mendel
Probate is the legal process that is typically required after a death to ensure that the decedent’s assets are identified, located, and eventually transferred to the rightful beneficiaries or heirs of the estate. Another important aspect of the probate process, however, is addressing debts of the decedent. Learn more about debts in Texas in this presentation.
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Owning real estate in a revocable living trust can avoid probate but there are considerations like ensuring homestead property tax exemptions are preserved, checking for due on sale clauses in mortgages, and being aware that placing homestead property in a trust may impact protections from bankruptcy claims. Placing property in a trust provides benefits but the document must be drafted correctly and asset protection, taxes, and impacts of two-trust estate planning should be discussed with an attorney.
This document provides information about various civil law matters including evictions, foreclosures, bankruptcies, and family law issues. It explains the processes for evictions, foreclosures, and bankruptcy filings. It also discusses legal aid programs in Texas, the Title IV-D child support enforcement program, and references additional resources for information on these topics.
This document provides an overview and analysis of challenges to the constitutionality of California's cap-and-trade program under the Global Warming Solutions Act. It describes the key components of cap-and-trade, arguments that the program constitutes an unconstitutional tax, and counterarguments that it is a lawful regulatory fee. The document examines this debate in light of restrictions on new taxes in the California Constitution and considers how courts might rule on the issue.
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Undue influence is an equitable doctrine where there is unfair pressure on a party forming a contract, but not reaching the level of duress. There are two types - actual undue influence where a special relationship exists between parties, and presumed undue influence where a relationship of trust and confidence exists but no special relationship. Certain relationships, such as solicitor-client or religious leader-disciple, carry a rebuttable presumption of undue influence. Establishing undue influence renders a contract voidable, though rescission may not always provide a useful remedy.
Cary J. Wintroub & Associates are personal injury attorneys / lawyers serving Chicagoland over 25 years. They Provide Quality Legal Representation for Victims of Personal Injury Accidents in Illinois. To discuss your case with Cary, please call 312-726-1021 or e-mail him at cjw@cjw-law.com
Use this form to litigate in court to defend your rights. Gives you standing without the need to quote federal statutes that you are not subject to anyway as a statutory "non-resident non-person".
Multi care health system v. lexington ins. co.Seth Row
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A non-attorney guide for nonprofits to assist in the successful handling of matured bequests to ensure their organization receives its full share and avoids unwanted liability. Includes sample letters, tax citations and other forms.
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This document outlines various cases related to the legal concept of undue influence. It divides the cases into two classes: 1) Actual undue influence, and 2) Presumed undue influence. Within the latter class, there are further divisions of 2A involving relationships of trust/confidence, and 2B involving other relationships. The document also discusses concepts such as manifest disadvantage and when undue influence may be presumed given certain relationships between parties.
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The document summarizes a new False Claims Act lawsuit against Progressive Insurance alleging they violated Medicare Secondary Payer laws. A relator purchased a health-first auto policy online from Progressive despite having Medicare. Progressive's website did not ensure she chose a PIP plan to make auto insurance primary over Medicare. When providers billed Medicare for her claims, Progressive instructed them to bill her health insurance instead of reimbursing Medicare. A court denied Progressive's motion to dismiss, finding the allegations met the elements of an FCA claim by causing Medicare to pay claims it was not responsible for. If successful, the case could establish insurers' responsibility to prevent Medicare beneficiaries from enrolling in plans where Medicare pays primary and to proactively identify Medicare beneficiaries.
The document discusses whether the tort of intentional trespass should be included in common law. It provides examples from past cases where the courts found defendants liable for intentional acts that caused physical or emotional harm. These include battery, false imprisonment, assault, intentional infliction of emotional distress, pure economic loss, and nuisance. The document argues that precedents from these cases could help guide future similar cases if the tort of intentional trespass is recognized in common law.
USA LAWYERS' - BAKER DONELSON... - WALL STREET PONZI SCAMSVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
12/28/18 VIDEO: END OF THE YEAR Utica International Embassy Interim Prime Minister Vogel Denise Newsome’s TELEPHONE CONFERENCE WITH Moorish Science Temple of America:
YouTube: https://youtu.be/69Vdtzme0eA
Vimeo: https://vimeo.com/309670714
Provides an UPDATE of the Agenda of the Utica International Embassy and the EFFECTIVENESS of work done by Interim Prime Minister Vogel Denise Newsome regarding:
(1) The COLLAPSE Of The United States of America’s – a/k/a Confederate States of America’s DESPOTISM Government
(2) The COLLAPSE Of The USA’s WHITE Jews/Zionists’ WALL STREET
(3) The WHITE Jews/Zionists/Supremacists CONTINUED efforts to TAKE CREDIT for WORK of Newsome in:
(a) EXPOSURE of USA’s Legal Counsel Baker Donelson Bearman Caldwell & Berkowitz PLANNING, ORCHESTRATING and CARRYING OUT The 9/11 World Trade Center Terrorist Attacks/Bombings
(b) EXPOSURE of USA’s Legal Counsel Baker Donelson Bearman Caldwell & Berkowitz ROLE in PONZI SCHEMES/SCAMS and FRAUDULENT Wall Street Scams STEALING/EMBEZZLING Monies From INVESTORS….
(c) NOW WHITE Zionist/Supremacist LUNATIC Groups (as Dark Overload, etc.) seek to PROFIT through BLACKMAIL Scams, etc.
UTICA INTERNTIONAL EMBASSY WEBSITE: https://uticainternationalembassy.website
SLIDESHARE.NET: www.Slideshare.net/VogelDenise
Plaintiffs Laura Krottner, Ishaya Shamasa, and Joseph Lalli sued Starbucks after a laptop containing their unencrypted personal information was stolen from Starbucks. The district court dismissed their claims for lack of standing under Article III. The Ninth Circuit affirmed in part but found that Plaintiffs had standing, as the theft of their personal information presented a credible threat of real harm from future identity theft. While only Lalli alleged current injury from anxiety, the other Plaintiffs' increased risk of identity theft was sufficient for standing purposes.
This motion seeks leave to file an amicus curiae brief in support of the plaintiffs-appellees in an appeal regarding damages for the injury of a pet. The motion argues that a statutory cap on damages for injury to a pet cannot limit the plaintiffs' constitutional right to full compensation for damages. It contends the cap was not intended to apply to actions by government entities and applying it retroactively would deprive the plaintiffs of vested rights. The motion asks the court to affirm the lower court ruling awarding damages exceeding the statutory cap.
Undue influence is an equitable doctrine where there is unfair pressure on a party forming a contract, but not reaching the level of duress. There are two types - actual undue influence where a special relationship exists between parties, and presumed undue influence where a relationship of trust and confidence exists but no special relationship. Certain relationships, such as solicitor-client or religious leader-disciple, carry a rebuttable presumption of undue influence. Establishing undue influence renders a contract voidable, though rescission may not always provide a useful remedy.
Cary J. Wintroub & Associates are personal injury attorneys / lawyers serving Chicagoland over 25 years. They Provide Quality Legal Representation for Victims of Personal Injury Accidents in Illinois. To discuss your case with Cary, please call 312-726-1021 or e-mail him at cjw@cjw-law.com
Use this form to litigate in court to defend your rights. Gives you standing without the need to quote federal statutes that you are not subject to anyway as a statutory "non-resident non-person".
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Bequest Administration for Non-ProfitsBeth McNally
A non-attorney guide for nonprofits to assist in the successful handling of matured bequests to ensure their organization receives its full share and avoids unwanted liability. Includes sample letters, tax citations and other forms.
This document summarizes rules for determining ownership of assets during a divorce under Puerto Rican law. It explains that assets acquired during marriage are generally considered marital property to be divided, unless proven to be non-marital. Assets owned prior to marriage are non-marital. It provides examples of specific asset types and whether they would be considered marital or non-marital property, such as salaries/wages, lottery winnings, stock dividends, lawsuit settlements, social security benefits, and spousal income received after divorce. The document aims to help divorcing couples understand how to divide what is considered "mine, yours, and ours."
This document summarizes a court case regarding whether wealthy nations have an obligation to help alleviate poverty in other countries. The court considers arguments from two petitioners, Peter Singer and Thomas Nagel. While acknowledging Nagel's argument is stronger, the court ultimately rules against both petitioners. It finds that obligations can only exist between parties that consented to an agreement, and one cannot force aid without consent. Additionally, the solutions proposed by both petitioners fail the criterion of practicality, as they would require drastic changes that could increase injustice and harm innocent people. The court concludes wealthy nations have no enforceable obligation to help poor foreign nations.
Business valuation
Legal & accounting fees
Executor/administrator expenses
An estate plan is important to preserve assets, ensure they are distributed according to your wishes, and minimize taxes. Your estate includes all property you own such as real estate, vehicles, bank accounts, retirement accounts, and life insurance. Assets transfer either directly by beneficiary designation, jointly with a spouse, through probate, or via a trust. Probate involves court supervision of distributing assets according to a will or state law and can be costly. Trusts avoid probate and provide lifetime management of assets. Estate settlement costs include funeral expenses, taxes, appraisals, legal and accounting fees.
Estate planning involves arranging one's assets and property for the benefit of family and loved ones after death. A will allows one to specify how property should be distributed, but if someone dies without a will they are said to have died intestate and the Hindu Succession Act determines inheritance. There are several types of wills including individual, joint, conditional, and holographic wills. Estate planning also involves ensuring beneficiaries are correctly named and accounts are jointly held or have powers of attorney to smoothly transfer assets after death.
Kindred Kentucky Supreme Court 16 32-op-bel-kyZ Research
The Supreme Court denied interlocutory relief to two nursing homes seeking to compel arbitration based on arbitration agreements signed by attorneys-in-fact during admission to the nursing homes. The Court found that the power-of-attorney instruments did not grant the attorneys-in-fact authority to waive the residents' right to access the courts. Additionally, the Court reaffirmed that wrongful death beneficiaries cannot be bound by arbitration agreements signed on behalf of the deceased.
This document outlines various cases related to the legal concept of undue influence. It divides the cases into two classes: 1) Actual undue influence, and 2) Presumed undue influence. Within the latter class, there are further divisions of 2A involving relationships of trust/confidence, and 2B involving other relationships. The document also discusses concepts such as manifest disadvantage and when undue influence may be presumed given certain relationships between parties.
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
The document summarizes a new False Claims Act lawsuit against Progressive Insurance alleging they violated Medicare Secondary Payer laws. A relator purchased a health-first auto policy online from Progressive despite having Medicare. Progressive's website did not ensure she chose a PIP plan to make auto insurance primary over Medicare. When providers billed Medicare for her claims, Progressive instructed them to bill her health insurance instead of reimbursing Medicare. A court denied Progressive's motion to dismiss, finding the allegations met the elements of an FCA claim by causing Medicare to pay claims it was not responsible for. If successful, the case could establish insurers' responsibility to prevent Medicare beneficiaries from enrolling in plans where Medicare pays primary and to proactively identify Medicare beneficiaries.
The document discusses whether the tort of intentional trespass should be included in common law. It provides examples from past cases where the courts found defendants liable for intentional acts that caused physical or emotional harm. These include battery, false imprisonment, assault, intentional infliction of emotional distress, pure economic loss, and nuisance. The document argues that precedents from these cases could help guide future similar cases if the tort of intentional trespass is recognized in common law.
USA LAWYERS' - BAKER DONELSON... - WALL STREET PONZI SCAMSVogelDenise
17 USC § 107 Limitations on Exclusive Rights – FAIR USE
12/28/18 VIDEO: END OF THE YEAR Utica International Embassy Interim Prime Minister Vogel Denise Newsome’s TELEPHONE CONFERENCE WITH Moorish Science Temple of America:
YouTube: https://youtu.be/69Vdtzme0eA
Vimeo: https://vimeo.com/309670714
Provides an UPDATE of the Agenda of the Utica International Embassy and the EFFECTIVENESS of work done by Interim Prime Minister Vogel Denise Newsome regarding:
(1) The COLLAPSE Of The United States of America’s – a/k/a Confederate States of America’s DESPOTISM Government
(2) The COLLAPSE Of The USA’s WHITE Jews/Zionists’ WALL STREET
(3) The WHITE Jews/Zionists/Supremacists CONTINUED efforts to TAKE CREDIT for WORK of Newsome in:
(a) EXPOSURE of USA’s Legal Counsel Baker Donelson Bearman Caldwell & Berkowitz PLANNING, ORCHESTRATING and CARRYING OUT The 9/11 World Trade Center Terrorist Attacks/Bombings
(b) EXPOSURE of USA’s Legal Counsel Baker Donelson Bearman Caldwell & Berkowitz ROLE in PONZI SCHEMES/SCAMS and FRAUDULENT Wall Street Scams STEALING/EMBEZZLING Monies From INVESTORS….
(c) NOW WHITE Zionist/Supremacist LUNATIC Groups (as Dark Overload, etc.) seek to PROFIT through BLACKMAIL Scams, etc.
UTICA INTERNTIONAL EMBASSY WEBSITE: https://uticainternationalembassy.website
SLIDESHARE.NET: www.Slideshare.net/VogelDenise
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SUPER, PERSONAL REPRESENTATIVES AND CONFLICTS OF INTEREST
1. A
ustralians currently have two
trillion dollars invested in
superannuation (Australian
Prudential Regulation Authority
(APRA), Quarterly Superannuation
Performance 2016), so it is no surprise
that upon death, competing interests
in the superannuation death benefits
(‘SDBs’) can result in contested
applications.
While it is commonly understood that
certain eligible persons have a right
to raise a claim for SDBs, what is not
commonly appreciated is that a conflict
of interest will often arise where a
personal representative (‘PR’) of an estate
seeks to raise a personal claim which is
at odds with the estate’s right to raise
a claim, on whose behalf the PR must
act. With so much at stake it was only
a matter of time before the issue was
litigated. The first noteworthy decision
was in the Queensland case of McIntosh
v McIntosh (2014) QSC 99 (‘McIntosh’).
Non-binding nominations and
administrators
It is instructive to begin by outlining the
background facts of McIntosh. James
McIntosh died at the age of 40. He had
various health issues and resided with his
mother (Mrs McIntosh). Mrs McIntosh
described their relationship as inter-
dependent. James was not close with
his father (Mr McIntosh). James’ parents
had an acrimonious relationship and
separated when he was young.
As James died without a will, under
the intestacy rules his estate was to be
divided equally between his parents.
His estate was valued at approximately
$80,000. Mrs McIntosh was appointed
as administrator of the estate without
opposition from Mr McIntosh.
Outside the estate, James had three
superannuation accounts in excess
of $450,000. He left non-binding
nominations in favour of his mother on
these accounts. Mrs McIntosh applied to
all three superfunds seeking to have the
SDBs paid to her directly on the basis of
an inter-dependency relationship.
Mrs McIntosh did not inform Mr McIntosh
that she was taking this step, though each
superfund was provided with information
about the grant as well as information
about James’ relationship with his father
and an avenue to contact him. All three
superfunds determined that there was an
inter-dependent relationship, and paid
the SDBs tax free to Mrs McIntosh.
When Mr McIntosh became aware of this,
he demanded James’ SDBs be paid into
the estate on the basis that Mrs McIntosh,
as administrator, breached her fiduciary
duty to the estate by actively seeking
payment to herself personally rather than
maximising the estate, thereby allowing
a conflict of personal interest and duty to
the estate to occur (at [60]). Mr McIntosh
relied on equitable principles, as well as
the Succession Act 1981 (Qld), s 52(1)(a).
He claimed the appropriate remedy for
this breach was an account for the profits
and the court should order Mrs McIntosh
to transfer the funds to the estate.
Mrs McIntosh submitted she was entitled
to apply for release of the funds to her,
as superannuation is not an estate asset
and payment to her resulted from the
superfund trustee, after making its own
enquiries, exercising its discretion to pay
her. She conceded that as administrator
of the estate, she was in a fiduciary
relationship with the beneficiaries of the
estate, however, ‘given the content of the
fiduciary duty in the circumstances of this
case she did not breach any such duty’
(at [57]). She submitted that her duty to
the estate did not include the obligation
to seek payment of the SDBs to the estate
[at [58]).
It was argued on Mrs McIntosh’s behalf
that, from the outset, Mr McIntosh was
aware of and had consented to the
potential conflict between her personal
interests to receive the SDBs and her duty
as a PR, therefore the obligation to collect
the SDBs on behalf of the estate was
outside her duty to the estate.
Atkinson J focused her decision on
the distinction between ‘administrator’
appointed by the court and ‘executor’
chosen and appointed by the willmaker.
She concluded that the willmaker could
be taken as consenting to any potential
or existing known or predictable conflict
of personal interest to the duty of the
executor. She drew on the judgement in
Mordecai v Mordecai (1988) 12 NSWLR 58
- that the conflict cannot be created by
the executor, but can only be pre-existing
to enable the implied endorsement of
the conflict by the willmaker. In the case
of intestate estates, the court prefers to
pass over an administrator who may have
a conflict.
Atkinson J found that as Mrs McIntosh
applied for the release of the SDBs
to herself after her appointment as
administrator, at the date of her claim
for the the SDBs she was subject to the
‘fiduciary duties reposed in the office of
administrator’ (at [68]), including a duty
of loyalty and good faith, and as such
had breached both the statutory and
common law duties.
Importantly for practitioners, she
also said in the Queensland statutory
framework and at common law, where
there are non-binding, lapsed or no
nominations, an administrator has a
SUPER,PERSONAL
REPRESENTATIVESAND
CONFLICTSOFINTEREST
By Christine Smyth and Katerina Peiros
• Eligible persons have a
right to raise a claim for
superannuation death
benefits.
• A conflict of interest may
arise when a personal
representative of an estate
seeks to raise a claim for
themselves, at odds with
the estate’s right to raise a
claim.
• Recent decisions guide
practitioners in advising
their clients on non-binding
nominations, collection of
death benefits and possible
conflicts of interest for
personal representatives.
88 LSJ I ISSUE 25 I AUGUST 2016
Legalupdates SUPERANNUATION
Christine Smyth is
a partner at Robbins
Watson Solicitors &
Deputy President of
the Queensland Law
Society. Katerina
Peiros is Principal
of Hartwell Legal.
2. duty to seek payment of the SDBs to the
estate, by compelling submissions to
the trustee calling on them to exercise
their discretion in this way but within the
realms of the superannuation legislation
(at [71] and [74]). In her Honour’s view,
it is self-evident that in the absence of
a conflict of interest, the administrator
would apply to have the SDBs paid to
the estate. She distinguished this from
situations when a binding nomination is
in place. Mrs McIntosh was ordered to
account to the estate for all of the SDBs
she had received.
This case turned firstly on the axis of
Mrs McIntosh being a court appointed
administrator, such appointment giving
rise to both statutory and equitable duties
to the estate, and the nomination being
non-binding.
Non-binding nominations and
executors
The decision in McIntosh created much
debate about the extent and scope of the
duty, in particular, the distinction it made
between an administrator (appointed by
the court) and an executor (appointed by
the willmaker).
This distinction may now be largely non-
existent as a result of Brine v Carter
[2015] SASC 205 (‘Brine v Carter’). This
case turned on the axis of executor
common law fiduciary duties and non-
binding nominations.
In Brine v Carter, Professor Brine’s long
term de facto spouse (Ms Carter) and his
three sons (from a prior relationship) were
the executors of his will. His assets were
extensive across multiple jurisdictions.
His will gave Ms Carter a life interest in
his residences and some minor gifts,
whereas the balance went to his sons and
grandchildren.
Prof Brine also had two superannuation
accounts with UniSuper, one which was
a defined benefit with a reversionary
pension to Ms Carter (without a final
death benefit), and another account with
a non-binding nomination in favour of
the estate.
Ms Carter was aware of the two accounts
and sought to urgently have them both
paid to herself. The Court found that from
Prof Brine’s death in December 2012 to
4 March 3013, she had deliberately failed
to disclose information and had misled
her co-executors about the number and
value of the accounts and that the estate
or the sons were eligible beneficiaries for
one of the accounts.
On 4 March 2013, the sons made their
own enquiries and ascertained the true
position. From that point on, Ms Carter
continued with her claim for the SDB and
the sons, as executors, jointly opposed it
and sought to have the SDB paid to the
estate as per their father’s non binding
nomination. Ms Carter did not participate
in this objection.
UniSuper reviewed the submissions of the
parties and determined to pay the SDB to
Ms Carter as the dependent. The decision
was appealed twice.
Once the SDBs were paid to Ms Carter,
the sons sought a declaration that Ms
Carter had breached her fiduciary duty
as executor and should account to the
estate for the benefit she received, similar
to McIntosh’s case.
The South Australian Supreme Court
was not bound by the same statutory
framework as Atkinson J. Blue J
considered the matter on the basis of
common law and equity. His Honour
found that although Ms Carter was an
unreliable witness, had deliberately
deceived her co-executors and had
breached her fiduciary duties as executor
until 4 March 2013, because she did not
participate in the objection to the trustee
and because the trustee had heard the
competing evidence of the sons and
made its own decision, there was no
breach by Ms Carter after 4 March and
therefore no remedy was required.
There was no causal connection between
the breaches before 4 March and the
benefit ultimately received by Ms Carter.
Blue J (at [123]-[124) summarised the
legal principles as follows:
‘An executor owes a duty to identify,
secure and collect assets of the estate.
An executor is a fiduciary who… generally
owes a fiduciary duty not without prior
authorisation:
1. to use knowledge or an opportunity
arising out of his or her fiduciary position
for his or her personal interest... ;
2. to pursue a personal benefit in
circumstances in which there is a real or
significant possibility of conflict between
his or her fiduciary duty and personal
interest…’
Blue J followed Deane J in Chan v
Zacharia (1984) 154 CLR 178 - a fiduciary
should have no opportunity to be swayed
by considerations of personal interest,
and if any benefit is derived from their
position, the fiduciary should account for
it to ensure no actual personal advantage
is derived (at [126]). His Honour said that
these principles are to be applied flexibly
and subjectively on the facts (at [127]).
The remedy is that the fiduciary holds
the benefit on a constructive trust for the
principal (in this case, the estate) (at [128]).
Ms Carter argued that Prof Brine
appointed her as executor with full
knowledge of the potential conflict (at
[141]), but Blue J found (at [145]) that Prof
Brine did not authorise the conflict as he
could not have envisaged these specific
subjective complex circumstances at any
time.
His Honour also found that although the
sons did not consent to the conflict for
the period from date of death to 4 March,
they had consented to the conflict after
4 March by allowing Ms Carter to remain
as their co-executor.
Ultimately, Ms Carter did not have to
account for the profits. Blue J (at [138]-
[139]) disagreed with Atkinson J’s view
in the McIntosh case, and concluded
that at common law, administrators and
executors owe the same fiduciary duties.
The distinction between Mrs McIntosh’s
conduct and Ms Carter’s was not that
Mrs McIntosh was an administrator and
Ms Carter an executor, but that Ms Carter
recused herself after 4 March from acting
as executor with respect to the UniSuper
claim whereas Mrs McIntosh did not act in
that way at any time.
Conclusion
Given the importance of superannuation
and the recent case law, lawyers might
consider advising:
• willmaker clients:
– to pay greater attention to their
choice of executor;
– to include conflict clauses in the will;
– about the consequences of
reversionary pensions, binding and
non-binding nominations and choice
of beneficiary for superannuation
(whether in SMSFs or large funds);
• personal representative (PR) clients:
– about the consequences of seeking
the payment of death benefits
personally to the adverse interest of
the estate;
– to consider making a joint
application with another person, not
becoming a personal representative
of the estate or considering the
manner, timing and sequence of
their application for a grant and their
personal application for SDBs; and
• beneficiary clients:
– as to the duties owed to them by PRs
and holding the PRs to account.
SUPERANNUATION
ISSUE 25 I AUGUST 2016 I LSJ 89