McIntosh v McIntosh [2014] QSC 99

Without a will

McIntosh v McIntosh [2014] QSC 99


Mr McIntosh died intestate (without a Will) without a spouse or partner. Accordingly, his mother was appointed to administer his estate.

Mr McIntosh’s mother contacted Mr McIntosh’s superannuation funds and applied to have the benefits paid directly to her as a dependent. The superannuation trustee accepted her application and paid 100% of the superannuation benefits (totaling more than $450,000) directly to her. If Mr McIntosh’s mother had applied for the superannuation benefits to be paid to the estate, the benefits would have been divided 50/50 between herself and Mr McIntosh’s father in accordance with the rules of intestacy (as there was no valid Will).


The Qld Supreme Court held that Mr McIntosh’s mother had breached her duty and was required to pay the funds back to the estate, where they were distributed in accordance with the rules of intestacy.

It was noted that the result would have been different if the mother was an executor, however, Brine v Carter now suggests that the same scrutiny will apply to both executors and administrators.

Brine v Carter [2015] SASC 205


Mr Brine appointed his defacto spouse and 3 children from a previous relationship as executors of his Will.

One of Mr Brine’s Superannuation Funds had a non-binding nomination in place stating that the money was to be paid in accordance with his Will.

Mr Brine’s spouse applied to the Superannuation Fund to have 100% of the funds paid to herself, rather than in accordance with the Will. She was successful, meaning that Mr Brine’s 3 sons did not receive any of the money held in the Superannuation Fund.


As executor, Mr Brine’s spouse had a duty to:

1. collect the assets of the estate; and
2. not personally benefit from her position.

However, due to a technicality, Mr Brine’s spouse was not required to repay the superannuation benefits back to the estate to be distributed in accordance with the Will, and Mr Brine’s 3 sons never received the inheritance Mr Brine intended them to have.

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