2 October 2019

The Value of Proper Advice

Geoffrey Armstrong
Geoffrey Armstrong New

Many people are reluctant to pay for proper legal and accountancy advice. The use of Do-It-Yourself and online services is becoming more prevalent but at what real cost?

Whilst DIY and online products may seem simple and straightforward the underlying law must still be strictly observed and adhered to. Simple mistakes or misconceptions can lead to catastrophic results as can be seen by the following real-life scenario.

Background

Mr X and Mrs Y agreed to separate due to irreconcilable differences. Mr X wanted the marriage to end as quickly, as easily and as cheaply as possible. To this end he set out on a DIY journey that was doomed to fail.

Upon the advice of a “friend” he drew up a home-made “Separation Agreement” which he and Mrs Y signed in the presence of two witnesses. Mrs Y was paid a sum of money “in full and final settlement” of all claims against Mr X’s assets. This was quickly followed by an online divorce application.

Mr X then addressed his superannuation account and created a home-made nomination duly nominating family members as beneficiaries in the event of his death. The nomination directed payment of the account balance including substantial life policy proceeds. To round off the situation in the event of his death he purchased a “Will Kit” from the Post Office.

Very shortly thereafter Mr X died suddenly and unexpectedly.

The Issues Arising

The home-made “Separation Agreement” was null and void due to legal non-compliance. However, Mrs Y had already received the agreed lump sum payment.

The divorce application, although filed, had not yet been set down for a hearing and so lapsed due to Mr X’s demise.

The home-made nomination in respect of the superannuation balance and life policy proceeds was invalid also due to legal non-compliance as it purported to appoint invalid beneficiaries. The chosen family members were not beneficiaries recognised by superannuation law. Payment of the superannuation balance and life policy proceeds was now at the discretion of the superannuation trustees.

The Post Office Will was never completed.

The End Result

Although the marriage had irretrievably broken-down Mr X and Mrs Y were still married at the date of his death and the invalid “Separation Agreement” had no effect. As Mr X died intestate (without leaving a Will) Mrs Y inherited the entire estate as sole beneficiary being the surviving spouse (there were no children). Mrs Y also received the superannuation balance and the life policy proceeds as the only discretions available to the trustees of the fund in light of the failed nomination were either to pay Mrs Y direct as surviving spouse or to pay the proceeds to Mr X’s estate which Mrs Y would receive anyway.

Given that Mr X’s estate included shares and interests in his family’s business the outcome of his actions for everyone except Mrs Y was disastrous. What price now for sound advice?

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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