The widow bride of an ISIS fighter killed in Syria became embroiled in an estate battle with her late husband’s parents for his estate. Dullel Kassab left Melbourne with her two children, both aged under five, to live in the Middle East after her husband was killed there. The Syrian government issued a death certificate for her husband after he was killed in Raqqa in January 2014. It is believed that she has since remarried another ISIS fighter.

widow, superannuation, estate battles, mitchells solicitors, estate planning, binding death nominationThe estate and his superannuation fund are to be inherited by his widow, Dullel. But the dead man’s brother, the executor of the estate, has vowed that the money will never go towards ‘supporters of terrorism’. Because superannuation cannot be dealt with by a will, the trustees of the super fund must determine where to pay the money. It is believed the trustees of the super fund has contacted the Australian Federal Police in an attempt to decide how to the pay the funds.

Kassab’s in-laws want to receive the money in trust for the children. The dead man’s brother said of the widow, Dullel Kassab: “She would give the money to her terrorist husband, and then think of the evil the money would be used for.”

But Dullel Kassab’s family say that her husband’s family are being vindictive. He said she had done nothing wrong, and that as time passed she “lamented” leaving the country.

Why do the trustees of the super fund get to decide who to pay the funds to?

Superannuation proceeds are not part of an estate of a deceased person unless the trustee of the superannuation fund actually pays the proceeds into the estate of the deceased person.

Upon the death of a member of a superannuation fund, the trustee of the fund has an absolute discretion in paying the superannuation proceeds to one or more persons who are defined under superannuation law as “dependents”.  The word “dependents” in fact means the following persons

(a)  A spouse (including a widow);

(b)  A child below or over the age of 18 years;

(c)  A person who is actually in a relationship of dependency with the member of the fund;

(d)  A person who is actually in a relationship of interdependency with the member of the fund.

Where a valid binding nomination is in place, and the trustee of the superannuation fund distributes the proceeds of the super pursuant to that valid binding nomination not a lot can be done in most jurisdictions of Australia, including Queensland. In the case above, if the killed ISIS fighter had signed a valid binding nomination directing his superannuation to go to his wife, then it may be very difficult for his brother or parents to challenge it. It’s also important to consider that many people have a life insurance policy as part of their super, the proceeds of which would get paid into the superannuation fund. The combination of the two assets – the super and the life insurance – means that the asset could end up being quite large.

superannuation, estate battles, mitchells solicitors, estate planningWhile nomination forms exist to take care of this problem, they are usually inadequate and fail to address more complex asset structures. Considering the potential size of the superannuation asset, it’s important to exercise control over the asset so that it’s disbursed according to your wishes.

A self-managed superannuation fund is the best vehicle for providing flexibility. Ad hoc rules can be drafted for the fund to act like a living will, and dictate what happens to the assets when you die.

It’s important to note that many super funds do not allow Binding Death Benefit Notices, and there is no obligation on the super fund trustee to carry out your wishes in this regard.

On the other side, you may discover that you expected to receive a payout from a loved one’s superannuation fund, but because the necessary nomination hasn’t been made, you’ve missed out. We are able to assist people who fall within the definition of a dependent for superannuation claims purposes.  Firstly we can assist in an application to the trustee of the superannuation fund to ask the fund to exercise its discretion to make provision.  Further, where the matter escalates, and there is a dispute, we are able to assist our clients in an application to the Superannuation Complaints Tribunal.

Contact us today for your FREE, 10-minute phone consultation. The friendly, experienced team at Mitchell Solicitor’s aims to ensure a decision is made that benefits your needs and allows parties to be happy.