The Great Wealth Transfer: Why trillions may not land where intended

Australians are expected to pass on $5.4 trillion over the next two decades, according to the JBWere’s 2024 Bequest Report. But the passage of wealth between generations is rarely a simple, linear handover. As the sum of intergenerational wealth transfer continues to grow, it falls to practitioners to advise clients on the ways even a carefully constructed, ostensibly "bulletproof" estate plan can come unstuck.

Relevant documents:

• Lynn v Australian Financial Complaints Authority [2025] FCA 175

• Pronesti v Napoli (No 2) [2026] NSWSC 856

• Lockrey v Ferris [2011] NSWSC 179

• Succession Act 2006 (NSW): Section 27(1), Section 58(2)

Disclaimer: The information provided in the articles in this section are of a general nature and should not be construed as specific advice or relied upon in lieu of appropriate professional advice. Whilst LEAP Legal Software uses commercially reasonable efforts to ensure the information in these articles are up to date at the time of publication, LEAP does not warrant their accuracy, currency or completeness and excludes all loss or damage howsoever arising (including through negligence) in connection with the information contained in these articles.

Superannuation: The asset your Will doesn't touch 

Superannuation now represents the second-largest share of net household wealth for Australians. The Australia Institute found that superannuation grew at a rate of 6.6% over the last 20 years, marginally outpacing even the storied appreciation of the Australian family home. Yet superannuation remains one of the most persistently misunderstood assets in estate planning. Many testators remain unaware that superannuation is not, by default, an estate asset and cannot automatically be disposed of via a Will. Its distribution depends on the applicable legislation, the fund’s governing rules and the existence and validity of any death benefit nomination. However, clients may make nominations that are invalid, allow them to lapse, or fail to make a nomination altogether, leaving the fund trustee with discretion over payment of the death benefit.

Lynn v Australian Financial Complaints Authority [2025] FCA 175 

The deceased, Richard Lynn, held a death benefit with AustralianSuper worth approximately $171,301 together with accrued interest. At the time of his death, he remained legally married to Consuella Lynn, although they had separated and were involved in family law proceedings. 

The deceased had made a non-binding death benefit nomination in favour of his four adult daughters and two adult stepsons. As the nomination was not binding, it did not compel AustralianSuper to distribute the death benefit in accordance with those wishes. 

AustralianSuper ultimately decided to pay the entire death benefit to Ms Lynn. One of the deceased’s daughters complained to the Australian Financial Complaints Authority (AFCA). AFCA determined that the trustee’s decision was not fair and reasonable in its operation. It substituted a decision under which: 

1. 50% of the death benefit was payable to Ms Lynn; and 

2. the remaining 50% was to be divided equally among the deceased’s four daughters and two stepsons. 

Ms Lynn appealed AFCA’s determination to the Federal Court however the appeal was dismissed. The Court accepted that AFCA was entitled to consider the deceased’s non-binding nomination as evidence of his wishes, notwithstanding that it was not legally binding on the trustee. AFCA was also entitled to consider the breakdown of the marriage, the pending family law proceedings, the extent of Ms Lynn’s financial dependence and the period for which she could reasonably have expected to receive continuing financial support from the deceased. The Court found no relevant error of law or denial of procedural fairness.

What this means in practice  

• Nomination type: Confirm whether a nomination in an APRA-regulated fund is binding or non-binding and lapsing or non-lapsing. Binding nominations may be subject to strict renewal requirements and commonly lapse after three years. Review nominations regularly to ensure they remain valid, effective and consistent with the client’s broader estate plan. 

• SMSF documents: Review an SMSF’s trust deed, death benefit nomination, corporate trustee constitution and trustee succession arrangements together. An appropriately drafted deed may permit an indefinite, non-lapsing binding nomination and greater control over who manages the fund following a member’s death or incapacity. 

• Separation: Reassess the client’s superannuation arrangements following separation. Separation, consent orders or an incomplete property settlement may not prevent an estranged spouse from claiming or receiving part of the death benefit, particularly where financial dependency or joint obligations continue. 

As superannuation assumes an ever-greater share of the wealth passing between generations, failing to ascertain the nature of your client's superannuation and the manner in which it devolves upon death may quietly divert substantial wealth from its intended beneficiaries, and ultimately not give effect to the testator's wishes. 

Out of time not out of luck: “bare paternity” in family provision claims  

Growing intergenerational wealth, appreciation in property values, the increasing prevalence of blended family structures, an ageing population, and heightened financial insecurity have produced conditions particularly conducive to estate disputes. As estates grow in value, so does the incentive to dispute them, and practitioners are observing a marked rise in contested estates and family provision claims.

Pronesti v Napoli (No 2) [2026] NSWSC 856 

Upon establishing biological parentage, the Supreme Court of New South Wales allowed the applicant, Peter Pronesti, to bring an application for family provision out of time. Peter had discovered that the deceased was his biological father 20 years after the date of death. 

Characterising the relationship as one of "bare paternity", the Court adopted the principle from Nicholls v Hall & Ors [2007] NSWCA 356:  

"even if a deceased never even knew of the existence of a child, if that child had a strong case on the other factors…a court could find that that child was left without adequate provision for proper maintenance."  

The Court held that the deceased owed a moral duty to make provision for the applicant, and Peter was awarded $975,000. Notably, the deceased's estate held no assets, as his interests in his properties passed by survivorship. Despite this, $28 million remained available under NSW notional estate laws, which allow the Court to designate property outside the deceased estate to satisfy a family provision order.

What this means in practice  

• Joint ownership: Review joint ownership structures. Severing a joint tenancy may bring the deceased’s share into the actual estate; leaving it unsevered may result in the property passing by survivorship but potentially remaining susceptible to a notional-estate order. Neither joint tenancy nor severance should be treated as automatically insulating property from a family provision claim. 

• Limitation period: Acknowledge that the statutory limitation period is not an absolute bar. Section 58(2) of the Succession Act 2006 (NSW) permits an out-of-time application on sufficient cause. Pronesti was decided under the predecessor provision (s16 of the Family Provision Act 1982 (NSW)), because the deceased died in 2003 and there, delayed discovery of the relationship was accepted as sufficient cause.

• Eligibility: Remember that bare paternity can be still sufficient to establish eligibility to bring a family provision claim.  

Against the backdrop of the great wealth transfer, estates of considerable value are becoming increasingly vulnerable to family provision claims, including from claimants of whose very existence the testator was unaware. This underscores that proactive estate planning, clear communication and professional guidance are increasingly critical to inform clients of the risk of disputes arising after death.  

Lost in translation: when the Will betrays the testator  

A drafting mistake can redirect the passage of wealth between generations, and the Court's confined power of rectification will not always reach far enough to correct it.  

Section 27(1) of the Succession Act 2006 (NSW) empowers the Court to rectify a Will so that it carries out the testator's intentions, where it is satisfied that the Will fails to do so either due to: 

(a) a clerical error; or 

(b) the Will does not give effect to the testator's instructions. 

The Court does not rewrite the Will to reflect what the testator would, or might, have intended had they turned their mind to the matter, rather the applicant must prove what the testator actually communicated to the drafter. 

In Lockrey v Ferris [2011] NSWSC 179, Hallen AsJ framed the enquiry as three questions: 

1. what were the testator’s actual intentions with regard to the dispositions in respect of which rectification is sought; 

2. is the Will expressed so that it fails to carry out those intentions; and 

3. is the Will expressed as it is in consequence of either a clerical error, or a failure on the part of someone to whom the testator gave instructions to comply with them. 

Lockrey v Ferris [2011] NSWSC 179 

Clause 3(d) of the Will did not expressly state what would happen if either of the two named beneficiaries, predeceased the testator. One of the beneficiaries died approximately 16 months before the testator, who did not amend the Will before his death. Subsequently, rectification was sought.  

The Supreme Court held that the gift under clause 3(d) was tantamount to a class gift. Having regard to the testamentary instrument as a whole, the Court concluded that the testator intended the beneficiaries within each specified category to receive all the shares allocated to that category. Accordingly, the three shares allocated to the two beneficiaries passed absolutely to the survivor.  

The person who assisted in drafting the Will, had predeceased the testator and no relevant file, notes or other records of the testator’s instructions which could be located.  

Although rectification was unnecessary given the Court’s construction of clause 3(d), Hallen AsJ held that the evidence would not have supported rectification. As his Honour observed: 

“Without knowing what, if anything, the testator communicated to the draftsman of the Will, I am unable to conclude that s 27 applies, and cannot, therefore, order rectification of Clause 3(d).” 

Although the drafting omission in this case did not produce an intestacy because the issue was resolved by construction of the Will, it illustrates that rectification is no substitute for careful drafting. A solicitor who fails to anticipate and address a foreseeable contingency leaves the Will's operation to chance. Without evidence of the testator's instructions, any later remedy under s 27 may be foreclosed, potentially swaying the transfer of wealth in another direction entirely.

What this means in practice 

• Contingencies: Draft for survivorship and substitution in every disposition clause  

• File notes: Keep file notes that record instructions, not just outcomes. In a rectification application, the drafter's evidence matters.  

• Drafts: Retain drafts and marked up versions. They are a contemporaneous record of what was asked for.  

• Systems: Use precedents and capitalise on new technology so contingencies are addressed by systems rather than memory.  

Preparing your practice for the Great Wealth Transfer

The Great Wealth Transfer will be the defining feature of Australian succession practice over the coming two decades, but the passage of wealth between generations is neither automatic nor assured. In an era when unprecedented sums are changing hands, all clients should be made aware that detailed and considered estate planning is no longer an ‘end of life’ concern. It is the difference between estates reaching their intended beneficiaries or estates being depleted in litigation, leaving intended beneficiaries disappointed.  

While the Great Wealth Transfer undoubtedly raises the stakes, it presents an equally significant opportunity for practitioners to expand their services to deal with more complex succession planning and to position themselves as key advisors. As previously simple matters become more voluminous and complex, it is also a timely moment to let legal technology carry the routine work.

LEAP Legal Software's regularly updated precedents help to build contingencies like survivorship and substitution into every Will as a matter of course, and keeping file notes, drafts and correspondence on the matter means the evidence a rectification application turns on is there when it is needed. That frees practitioners to direct their expertise towards the complexities of the wealth transfer itself, rather than the administrative work such matters present.

Frequently asked questions

Does superannuation form part of a deceased estate?

Not by default. Superannuation is held by the fund trustee, and its payment depends on the applicable legislation, the fund’s governing rules and any death benefit nomination, so it cannot automatically be disposed of by a Will.

Can a family provision claim be brought out of time in NSW?

Yes. Section 58(2) of the Succession Act 2006 (NSW) permits an out-of-time application on sufficient cause, as occurred in Pronesti v Napoli (No 2), where the applicant discovered the relationship 20 years after the death.

Can jointly held property be reached by a family provision claim?

Potentially. In NSW, the Court may make a notional estate order designating property that passed by survivorship to satisfy a family provision order.