A SMSF can give rise to uncertainty in how benefits will be paid and create disputes between family members if appropriate care is not taken. It pays to get advice about binding death benefit nominations.

Ensure that your superannuation passes to your intended beneficiaries

SMSFs are an increasingly popular form of retirement fund, and one of the fastest growing retirement funds. They offer a high level of flexibility and allow members a wider range of investment possibilities and a greater level of control over their retirement benefits. However, as with any family arrangement, a SMSF can give rise to uncertainty in how benefits will be paid and create disputes between family members if appropriate care is not taken. It pays to get advice about binding death benefit nominations.

Who gets your super?

Superannuation benefits usually pass as follows:

  • In accordance with a binding death benefit nomination;
  • If there is no binding death benefit nomination, in accordance with the trustee’s discretion; and
  • If the trustee does not exercise his or her discretion, in accordance with the rules of the fund.

A recent decision handed down by the Supreme Court of Western Australia emphasises the importance of ensuring that you have a current binding death benefit nomination in place.

Case study – Children oppose decision to pay benefits to ex-husband

Ioppolo & Hesford v Conti [2013] WASC 389 concerned a dispute regarding the distribution of a deceased member’s interest in her SMSF. Mrs Conti and her husband, the first defendant, had created a SMSF by deed in 2002. The couple were the only trustees and members of the SMSF. Mrs Conti then made a Will in 2005 in which she directed that her children receive her entitlements under the SMSF. She specifically stated that she did not want her husband to receive those funds.

When Mrs Conti died in 2010, she did not have a current binding death benefit nomination. Her husband became the only trustee and member of the SMSF. The second defendant was appointed trustee of the SMSF by deed of appointment in 2011. The second defendant disregarded the direction in Mrs Conti’s Will and determined that her entitlements should be paid to her husband. Her children, the plaintiffs, then challenged.

Their relevant arguments were that the:

  1. first defendant was obliged to appoint one of the executors of Mrs Conti’s estate as trustee of the SMSF;
  2. second defendant did not exercise its discretion in good faith; and thirdly, that the trustee’s determination should be reviewed and overturned.

In finding against the plaintiffs, the court held that:

  • The first defendant was entitled but not bound to appoint an executor as trustee.
  • The second defendant was entitled but not bound in any way to take into account the desires of a deceased member. This is even if those desires were expressed in a Will.
  • The second defendant did not act improperly by ignoring Mrs Conti’s Will. The mere fact that her direction was ignored did not equate to a lack of good faith.
  • In the absence of a binding death benefit nomination, the defendants acted properly.

This decision serves as another reminder that superannuation is a non-estate asset that does not automatically pass in accordance with the Will of a member. Therefore a current and valid binding death benefit nomination is crucial to ensure that your benefits pass to your intended beneficiaries.

Case study – siblings fight for right to manage SMSF

The case is not ground-breaking; in 2005, the Supreme Court of New South Wales made a similar decision in Katz v Grossman. This case involved a contest between two siblings in relation to the control of a SMSF. Mr Katz, their late father established the SMSF.

Mr Katz had made a non-binding death benefit nomination indicating that he wanted his benefits to be split equally between his children. When he died, his daughter (Mrs Grossman) became sole trustee and quickly appointed her husband as additional trustee. As trustees they disregarded the non-binding nomination and paid 100% of Mr Katz’s benefits to Mrs Grossman. Although Mr Katz’s son challenged this exercise of discretion, Mrs Grossman and her husband had acted properly as trustees and were entitled to disregard the non-binding nomination.

Regularly review your death benefit nominations

If you have an SMSF you should:

  • Review your SMSF deed to ensure that trusteeship automatically passes to your executor or legal personal representative.
  • Ensure that your SMSF deed allows for non-lapsing binding death benefit nominations; and
  • Seek estate planning advice to ensure that your SMSF deed and estate planning documents do not conflict.

If you would like to review your SMSF deed and estate planning arrangements, please contact the Milestone Financial team.

Guest Blogger Vik Sundar, Chamberlains Lawyers

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Address: 12A Thesiger Court, Deakin ACT 2600

Phone: 02 6102 4333


Milestone Financial Services Pty Ltd

(ABN 68 100 591 508) is an Authorised Representative and Credit Representative of AMP Financial Planning AFSL 232706