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When a Member dies, the Member’s benefit will be passed on to beneficiaries or the Member’s legal personal representative. This can be done in the form of a Binding Death Benefit Nomination (BDBN), also referred to as an “SMSF Will“.

When the Trust Deed is silent or ambiguous as to whom the beneficiaries are, the Member’s benefit will pass on to the estate of the Member and be allocated from there according to their Last Will or Testament. The disadvantage of this approach is that outside parties may lay claim to the estate, e.g. previous spouses, family members or even creditors. For this reason it is prudent to indicate in the SMSF Will who the beneficiaries are.

Recent Legal Cases

As per the Superannuation Industry (Supervision) Regulations, benefit can only be made out to an individual. Generally, the Trustees of the Fund control the benefit in the SMSF.

There are some specific items that Trustees should look out for when establishing a BDBN. Trustees must ensure that their nominations are clearly noted in the Fund’s Trust Deed or a subsequent BDBN. The main areas to consider and the key risks of SMSF estate planning are noted in the five Court cases :

Katz vs Grossman – Trustees of the Fund controls the benefit in the SMSF

Ervin Katz and his wife established an individual Trustee SMSF. After his wife passed away, Ervin Katz appointed his daughter, Linda Grossman, as an additional Trustee in accordance with the ATO requirements.

After Ervin passed away, Linda Grossman appointed her husband as a replacement Trustee. Ervin’s non-binding nomination notes that his benefit was to be paid equally between Linda and her brother, Daniel. However, Linda and her husband, who are now the Trustees of the Fund, determined that 100% of Ervin’s benefit be paid solely to Linda. Daniel Katz contested in the Court the technicalities of the appointment of Linda and her husband as trustees.

However, as Linda and her husband are the Trustees of the Fund, they have control of the benefits. In addition, Ervin’s death benefit nominations were non-binding, which is no more than a consideration for the Trustee to take into account. Daniel’s arguments failed and the Trustees’ decision remained effective. To access the complete case law, please click here.

Marsella vs Wareham – A discretionary power of a Trustee of the Fund is set aside

Mrs Marsella died leaving her husband of 32 years and two children from a previous marriage. When her SMSF was established, Mrs Marsella and her daughter were the Trustees of the SMSF. Upon her death, her daughter became the sole Trustee.

Mrs Marsella executed a death benefit nomination to her grandchildren in 2003. This nomination has lapsed at the time of her death. Therefore, the Trustee was not bound to distribute the death benefit to any particular person. The payment of the death benefit was left up to the surviving Trustee’s discretion, so Mrs Marsella’s daughter paid the entire benefit of the Fund to herself. Disputes arose between her husband and the two children.

The daughters decision was set aside as it was made without real and genuine consideration of the interests of the deceased Member of the SMSF.

It is the remaining Trustee’s responsibility to ensure the Member’s death wishes are adhere to. Ensuring a valid BDBN is in place at the time of death may assist in avoiding family disputes. To access the complete case law relating to Mrs Marsella, please click here.

Donovan vs Donovan – BDBN must be clearly noted as binding on the Trustee

Ronald Donovan was the only Member and Director in a Corporate Trustee Fund.

The Fund’s Trust Deed allowed both binding and non-binding death benefit nominations. Ronald made a death benefit nomination to his legal personal representative. However, the death benefit nomination that Ronald made is ambiguous and is not specifically noted as binding. The Court therefore determined that due to the ambiguous way that the nomination was worded, Ronald’s nomination is deemed to be non-binding.

If Trustees want to create a BDBN, the binding nomination must be in writing and witnessed by two individuals over the age of 18. This is in accordance with SIS Reg 6.17A and SIS Act 59(1A). To access the complete case law, please click here.

Munro vs Munro – BDBN must be clearly worded to ensure validity upon a Member’s death

Similar to the case of Katz vs Grossman, one of the Trustees in an Individual Trustee Fund passed away, leaving the remaining Trustee to manage the Fund. Suzie, the deceased Trustee’s second wife appointed her own daughter as the second Trustee of the Fund.

Before his death, Munro nominated his beneficiary as “Trustee of Deceased Estate”. However, this term was not accepted by the Court as another way of referring the legal personal representative. Due to an incorrect wording in the binding death benefit nomination, the Court found that the nomination is considered invalid. The death benefit payment decision is therefore up to the discretion of the surviving Trustees in the Fund. To access the complete case law, please click here.

Wooster vs Morris – BDBN is only a partial solution at best, the Trust Deed of the Fund should contain further controls to ensure a sensible and efficient outcome

Maxwell Morris and his second wife, Patricia Morris, set up an Individual SMSF.

In the Trust Deed of the Fund, Maxwell nominated his daughters from an earlier marriage as the binding death benefit nominees. Upon his death, Patricia, the remaining Member of the Fund tried to pay all of the deceased’s benefit to herself. Although the Court found the nomination in the Trust Deed to be in favour of Maxwell’s daughters, a large portion of Maxwell’s benefit was unrecoverable due to Patricia’s bankruptcy and other expenses incurred during the court progression.

In this case, the Trust Deed of the SMSF is important in ensuring an efficient division of benefits upon the Member’s death. To access the complete case law, please click here.

Ioppolo vs Conti – Trustees need to ensure that their BDBN is valid and up to date

Francesca and Augusto Conti were the only members and individual trustees of an SMSF. Mrs Conti passed away in August 2010, her BDBN having lapsed in April 2009.

As sole remaining trustee, Mr Conti exercised the trustees discretion to pay the benefit to himself. Mrs. Conti’s BDBN lapsed after 3 years of inception, Mr. Conti, who was the sole remaining Trustee of the Fund, has control of the benefits. To access the complete case law, please click here.

Four SMSF Estate planning options

There are effectively four ways that you as a Trustee can look after your dependents or others from your SMSF on your death:

  • You can pay a lump sum from your benefits in the Fund, by way of cash or assets, to a dependent or the Trustee of your legal estate
  • You may pay a pension from your benefits in the Fund to a dependent. There are restrictions on paying pensions to child dependents over the age of 18 unless the child is a student under the age of 25 or a child who is disabled
  • A reversion of an existing pension which results in the continuation of the pension in the name of the reversionary beneficiary, provided the person is a dependent and in line with the child limitation as mentioned above. Please bear in mind that the auto reversionary pension is subject to the specific nominated beneficiary being at an entitled death benefit income steam recipient. If a specific individual such as adult children of the deceased Member are not a DBIS allocated recipient, then the pensions may fail to revert and the reversionary nomination will no longer be applied. With reference to sub-regulation 6.21(2)(b)(ii) and (2A) of the SIS Act, adult children could not receive death benefits as an income stream unless they are a financial dependent of the deceased member or have a prescribed disability. Further guidance on the regulation 6.21(2)(b)(ii) and (2A) of the SIS Act can be found here.
  • Any insurance proceeds from a life insurance policy held in your name as a Trustee may be used to increase the deceased Member’s benefits

Updating or Establishing a Binding Death Benefit Nomination

Here is a template BDBN or SMSF Will that can be used to either update an existing BDBN or establish a new BDBN. This will be valid until the Member decides to change it. Please see the tab below:

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