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The cricketing legend and commentator Richie Benaud died in April, aged 84, and was allegedly worth tens of millions of dollars at the time of his death. Now his first wife, Marcia Lavender, and son from that marriage, Greg Benaud, have launched legal action against his widow, Daphne, saying that she is downplaying the size of the estate.

“We don’t know what the size of the estate is,” counsel for Greg Benaud, Raoul Wilson SC, told the Supreme Court. “The value of the estate does not accord in any way to the value my client was told when the deceased was alive.”

The matter involves wealth held in complex trusts and superannuation both in Australia and abroad, the court heard.

It is understood that Ms Benaud has made a settlement offer to Ms Lavender and her son which has been rejected while they ascertain the true value of the estate.

Mr Wilson told the court they wanted to go through the process of discovery, which forces both sides to legally declare their hands, but they will attend a compulsory private mediation, probably in December.

Richie & Daphne Benaud in 2007.

Richie & Daphne Benaud in 2007.

How can Benaud’s son contest the will?

It is likely that Greg Benaud has challenged the will under section 57 the New South Wales Succession Act 2006, which allows certain family members to make a claim against the estate if they feel they’ve been left out or treated unfairly. Broadly speaking, those who are eligible to contest the will are spouses (both current and former), de facto partners and children.

When assessing a claim against an estate, the court will take into account the following factors:

  • Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life.
  • Competing claims of other eligible persons or beneficiaries.
  • The nature and duration of your relationship with the person who has passed away.
  • Your financial resources and earning capacity.
  • The size of the estate.
  • The financial circumstances of people you cohabit with.
  • Contributions you made, both financial and non-financial, to the person who has passed away.
  • Any provision the deceased person made for you during their lifetime.

Complicating matters in this case is the fact that many of the assets are probably held in structures, rather than Richie Benaud’s name. It’s common to use a structure called a testamentary discretionary trust to own assets so that they can be passed from one generation to the next while protecting the assets from legal action or bankruptcy. But this does not protect the estate against claims by eligible persons who feel that they haven’t been provided for fairly under the will.

It’s also important to note that superannuation cannot be dealt with by a will, yet it is often quite a large asset. It’s up to the trustees of the superannuation fund to decide where the assets held by the deceased go, unless there is a binding nomination in place. If a valid binding death benefit nomination is in force at the time of death, the trustee of the superannuation fund no longer has discretion about who to pay the superannuation entitlements to, but is bound by the nomination. However, all binding death benefit nominations last for a maximum of 3 years. Therefore, you must update your binding nomination at least every 3 years. Usually, the trustees of a superannuation fund will pay proceeds to your dependents, which include your spouse and children.

What about testamentary freedom?

Testamentary freedom is a term that refers to you being able to draft your will in any way you wish, and leave your assets to whom you wish. In fact, this is not entirely accurate. The law attempts to balance testamentary freedom with the doctrine of moral obligation to provide for persons the community deems you owe it to.

The area of succession law is a complex one, and we always recommend you seek specialist legal advice when it comes to drafting a will, updating a will, or contesting a will. Contact us today for your FREE, 10-minute phone consultation.