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Court confers power on mother to make BDBN for injured child

02/05/2019

In this case, the Supreme Court of Queensland was asked to authorise the making of a statutory will for a severely injured child.  The child, who is aged 30, has no capacity to make a will due to severe brain injuries arising from medical negligence occurring during birth.

A very substantial compensation was awarded for the negligence and a significant portion of the awarded sum was contributed to a superannuation fund on behalf of the child.  The tax and superannuation rules relating to contributions has an exception for contributions arising from structured settlements or orders for personal injuries – in short, the contribution even though made by a third party is not treated as being an assessable contribution and the contribution is not treated as either a concessional or non-concessional contribution – so there is no dollar limit on the amount of the contribution which can be made.

As such a significant amount was now in a superannuation fund for the child, the issue arose whether the Court should confer power on the mother to be able to make a binding death benefit nomination for the child.

The Court exercised the power to authorise the proposed will for the child, and relying on its “related orders” jurisdiction, held that due to the significant value in the superannuation system for the child, it was also necessary and appropriate to make an order conferring power on the mother to make a binding death benefit nomination for the child.

The case is reported as MZY v RYI [2019] QSC 89.