Australia: Super and Estate Planning: Making the BDBN immune from challenge in an SMSF - part 2

8.1 The issue of the 'control' of the superannuation death benefit decision is deeply embedded in the minds of most estate practitioners.

8.2 The importance of who controls the superannuation fund and has the discretion as to how the superannuation death benefit is paid was highlighted by the case of Katz v Grossman. ¹⁴

In this case, Daniel Katz brought an action against his sister Linda Grossman and her husband Peter Grossman claiming an interest in their father's SMSF. The key facts of this case were as follows:

1. The deceased and his late wife were individual trustees of their SMSF.
2. The deceased's wife died in 1998 and the deceased appointed his daughter Linda as an additional trustee of the fund.
3. When the deceased died in 2003, Linda appointed her husband Peter as a co-trustee.
4. The deceased had made a non-binding nomination of beneficiary in which he indicated that he wanted his superannuation benefit to be divided equally between Daniel and Linda.
5. Linda and Peter refused to follow the deceased's non-binding nomination and decided to pay the entire benefit of approximately $1,000,000 to Linda.
6. Daniel challenged the appointment of Linda and Peter as trustees of the fund.

The Court held that both Linda and Peter were validly appointed as trustees and as a result they were entitled to exercise the powers of the trustee. This included the discretionary power to pay the death benefit in accordance with the trust deed and the SIS Regulations.

8.3 Following this case, practitioners generally paid a lot more attention to binding nominations and who had the power to control the superannuation fund where there was no binding nomination to prevent such abuses from occurring.

8.4 Despite this, not as much focus has been given to who controls the superannuation where the superannuation death benefit decision is locked in either by way of binding nomination, reversionary pension or specific trust deed provision. This is most likely due to the complacency resulting from the knowledge that the trustee has to comply with a pre-made decision.

Although the thought process behind this is logical, it does not necessarily prevent a dispute. The recent Victorian Supreme Court case of Wooster v Morris¹⁵ is a prime example of the potential issues that can arise where the trustee chooses not to comply with the trust deed.

In this case the deceased had made a binding nomination for the benefits in his SMSF in favour of his two daughters from his first marriage, who were also the executors of his estate. At the time of his death, the deceased's second wife was the surviving member and trustee of the SMSF.

The second wife disputed the validity of the binding nomination and had obtained legal advice that the nomination was not binding as it was not delivered to her in her capacity as a co-trustee as required by the trust deed. The second wife, as the surviving trustee and the controller of the SMSF, therefore decided to pay the superannuation death benefit to herself.

As a result, the daughters had to commence proceedings to obtain an order that the nomination was valid and binding on the trustee and to direct the second wife to account for the superannuation death benefit to them.

The judgment does not contain a detailed consideration of the reasoning why the binding nomination was valid, however, the daughters were successful. The Court also ordered that the daughters' costs by paid by the second wife and the new corporate trustee of the SMSF and that the deceased's superannuation death benefit was not to be diminished by the costs order.

8.5 This case demonstrates how critical it is to deal with the control of the SMSF in all situations, including where the trustee's discretion is removed. Our clients will not thank us for the work we do if they have to go to court to enforce their right to receive the superannuation death benefit under a binding nomination, reversionary pension or a specific trust deed provision.

8.6 Broadly speaking, the issue with control of SMSFs can be broken down into two categories:

1. SMSFs with individual trustees; and
2. SMSFs with corporate trustees.

Individual trustees

8.7 Where there are individual trustees it is critical that you review the terms of the trust deed to determine how a replacement trustee is appointed in the event of the death of a trustee and member. This is because:

1. the deceased will cease automatically to be a trustee on their death; and
2. control of the SMSF will then rest with the remaining individual trustees and the person who has the power to appoint new trustees.

8.8 Where a member dies, section 17A(3)(a) of the SIS Act provides that the deceased's legal personal representative (LPR) must be appointed as a trustee of the fund (or a director of a corporate trustee) within six months of the member's death in order to satisfy the basic conditions to remain an SMSF while the deceased still has member benefits in the SMSF. If this is not done, the SMSF ceases to be a complying SMSF and can be made non-compliant by the ATO.

However, section 17A of the SIS Act does not automatically appoint the LPR as a trustee (or a director of a corporate trustee) of the SMSF. This is a common misconception.

8.9 The importance of reviewing the SMSF trust deed to determine who has the power to appoint trustees was addressed in the case of Ioppolo & Hesford v Conti. ¹⁶

In this case, the deceased and her husband (possibly a second husband) were both the trustees and members of an SMSF. Prior to her death, the deceased had signed several nonbinding and binding nominations directing that her superannuation death benefit be paid to her husband but these had lapsed when she died.

Also, in her Will, the deceased directed that her superannuation be paid to her children and she expressed her wish that none of her benefit should be paid to her husband.

At the time of her death, the SMSF's trust deed provided that, unless there was a binding death benefit nomination, the trustee had absolute discretion as to how a death benefit was to be paid.

Upon death, her husband was left as the sole trustee of the SMSF. He subsequently changed the trustee of the SMSF to a company of which he was the sole director and shareholder.

Presumably, this was to ensure that the requirements of section 17A of the SIS Act would continue to be complied with once the deceased's death benefit was paid.

Following the change of trustee, the deceased's husband exercised his power as the sole director of the corporate trustee to pay the deceased's superannuation death benefit to himself, not to the deceased's children.

The deceased's children challenged this decision on the following grounds:

1. The deed required the deceased's LPR to be appointed as trustee of the SMSF because the deed required the fund to remain an SMSF.
2. The trustee did not exercise its discretion in good faith.

The second argument failed as the deceased's husband had act prudently, including taking advice on his obligations in relation to paying the death benefit.

In relation to the first argument, Master Sanderson J reviewed the requirements of section 17A of the SIS Act and held that:

Therefore, in the absence of any express clause in the trust deed, the Court found that the deceased's husband was not required to appoint her LPR as a trustee, and therefore, the husband's exercise of powers was valid.

8.10 Therefore, in order to pass control of the SMSF on the death of the member, the following issues need to be carefully considered:

1. the choice of legal personal representative as the intention will be for this person to become a co-trustee and assist in the death benefit decision; and
2. the provisions in the trust deed for appointing trustees.

8.11 The provisions in SMSF trust deeds for appointing trustees are many and varied. The most common trust deed provision for appointing trustees is a clause that requires the determination of a majority of members.

Although this provision may be sufficient for everyday operation, it can be the source of problems when it comes time to appoint the LPR as a trustee.

In your typical two member SMSF, this would require the consent of the surviving member (generally the surviving spouse), to have the LPR appointed as a trustee. This may be a problem where the interests of the continuing trustee/member and the LPR are not aligned (as in Ioppolo v Conti).

8.12 As a result, it may be necessary to think about alternative clauses for appointing trustees. For example:

1. each member has the right to appoint a trustee; and
2. following the death of a member the LPR of that member has the right to appoint themselves as a trustee.

8.13 Also, when reviewing or drafting trustee appointment clauses it is important that you are aware of the common drafting mistakes in SMSF trust deeds. These include the following:

1. The deceased person ceases to be a member immediately on death even though their member benefits have not yet been paid. Sometimes this is clearly set out in the membership clauses, other times it occurs inadvertently as the member ceases being a trustee and the trust deed provides that where a person ceases being a trustee they also cease being a member.
2. The trust deed does not give the LPR the power to exercise the member's rights. This can be a particular problem where you have a two member SMSF and the appointment clause requires a majority of members to approve the appointment. As no one is entitled to vote on the deceased member's behalf, it is not possible to appoint a new trustee.

3. This can also be a problem in single member SMSFs as well. However, the Trusts Acts in the various states are usually of assistance where this issue arises.

4. The trust deed contains a restrictive definition of legal personal representative.

8.14 Even where these issues have been addressed, one issue is often overlooked. That is the 'timing gap' between the date of a member's death and when the substitute trustee is appointed.

Unless this issue is properly addressed, in my opinion, there is no point drafting a trustee appointment clause that is going to work for your client's circumstances. This is because the surviving trustee can make the decision on where to pay the superannuation death benefit before the substitute trustee is appointed in place of the deceased member.

8.15 To address this issue, some prominent SMSF trust deed providers include a clause that automatically appoints the LPR of the member as a trustee of the SMSF on the member's death.

Although the logic behind this clause is obvious, we are concerned that in the majority of cases it will not operate as intended. This is because section 118 of the SIS Act provides as follows:

As a result, the automatic appointment clause will only apply to appoint the LPR as a trustee of an SMSF where they have consented prior to the death of the member. To date, we have never had a client who has been able to produce paperwork to prove this step has occurred. In the absence of this paperwork, the appointment of the LPR as a trustee will be invalid.

8.16 Other alternatives that you may wish to consider include the following:

1. You could include a restriction on when the trustee of the SMSF is permitted to make the death benefit decision. For example, a clause could be included to prevent a death benefit payment decision being made within 30 days of the date of the member's death. By including this restriction, you provide the LPR with sufficient time to be appointed as a trustee.
2. The person who you want to ultimately control (or co-control) the SMSF could be added as a member and therefore a trustee of the SMSF at the time you are undertaking the estate planning. This will mean that there is no timing gap.
3. The husband and wife each have their own SMSF with a corporate trustee. We have recommended this option on a number of occasions where there has been a blended family and control has been a real concern as they want the superannuation death benefitto go to their children rather than the surviving spouse.

Corporate trustees

8.17 Generally, the same issues arise where the SMSF has a corporate trustee, except that the:

1. control of the deceased member's shares (if they had any) in the corporate trustee needs to be addressed; and
2. power of appointing directors under the company constitution needs to be considered in addition to the trust deed provisions.

8.18 Passing control of the shares in the corporate trustee seems easy; however, it can often be more difficult than first thought. For example, leaving the shares to the intended recipient under the Will is effective except if the Will is the subject of an estate challenge.

Where passing control of the shares under a Will is likely to be problematic, you need to consider the other options available to ensure the correct people end up with the control. Some alternatives we have used in the past include the following:

1. Transfer the shares in the corporate trustee so that the SMSF member and the intended controller after the member's death jointly own the shares in the corporate trustee. Under the rules of survivorship, the member's interest in the shares will automatically pass to the other joint owner on the member's death.
2. Issue a different class of shares (for example an A class share) to the intended controller of the corporate trustee after death. These 'A Class' shares are set up to have no voting rights while the SMSF member is alive, however, the constitution provides that on the death of the member, the voting rights on the ordinary shares cease and the 'A class' shares automatically become voting shares.

8.19 However, even if the control of the deceased's shares in the corporate trustee is adequately dealt with under the Will, it is also necessary to consider the provisions in the constitution for appointing directors. The majority of constitutions follow the Corporations Act replaceable rule¹⁷ that a majority of member eligible to vote at a general meeting is required to appoint a director.

This position gives rise to the same issues outlined in paragraphs 8.11 and 8.14.

Generally the options discussed in paragraphs 8.12 and 8.15 can be used to overcome this problem if appropriately worded clauses are included in the company constitution.

8.20 In addition to these solutions, you may want to include a restriction on the directors of the corporate trustee making a death benefit decision, similar to that discussed in paragraph 8.16(a). A common provision that we have used in SMSF corporate trustee constitutions is one that requires:

1. a majority or unanimous resolution of shareholders to approve a death benefit payment; or alternatively
2. a particular class of shareholder (this works well when different classes of shares have been issued to each member) to approve the death benefit decision.

It is our preference to draft these clauses to give the shareholders the overriding power rather than the directors, as it is easier to pass control of the shares automatically on death than automatically appointing a trustee or a director or including some other restriction on when a trustee or a director can make a death benefit payment decision.

8.21 Where the SMSF member does not hold shares in the corporate trustee, there are generally two options:

1. include a specific clause in the company constitution that allows the LPR of the member to appoint themselves as a director; or
2. give the LPR the ability to appoint themselves as a co-trustee with the company under the trust deed.

Other control issues

8.22 There are some additional control issues that I believe should be considered when advising clients on control of their SMSF as part of their estate planning.

Weighted voting

8.23 There are a significant number of specialist SMSF trust deed providers that now include clauses in the trust deed and corporate trustee constitution that weight trustee (except where trustees are required to act jointly), member and director voting powers in accordance with their member balance in the SMSF. The effect of such clauses is to provide the person with the highest member balance with control over the various decision making processes (assuming a two member SMSF).

Although such clauses may have some operational benefits, there are inherent risks that we as estate planning practitioners must warn our clients of.

Our main concern is that clients are not warned of the consequences where they no longer have the largest member balance in the SMSF. This can be particularly problematic where the member dies as they may:

1. no longer have the necessary voting power for their LPR to appoint themselves as a trustee or a director of the corporate trustee; or
2. be able to appoint themselves as a trustee or a director, but the other trustee or director has sufficient voting power to make the death benefit payment decision by themselves without the LPR's input.

LPR override

8.24 Recently, I have seen a worrying trend to include a clause in the SMSF trust deed to provide a member's LPR (which includes their attorneys) with the power to amend, alter or otherwise change the member's binding nomination while they are alive or at any time before the death benefit is paid.

In our opinion, these clauses are one step too far. Although the person appointed as the member's LPR may be chosen after careful consideration, this gives the LPR the power to exercise a wide ranging power that could be used to their benefit. For example, there is nothing in these clauses that prevent the LPR from revoking a binding nomination in favour of a another dependant and then using their trustee discretion (assuming they can validly appoint themselves) to make a death benefit payment that benefits them where they are a dependant.

Given the potential downside, it is essential that you warn clients of the risks with these clauses where they are included in the SMSF trust deed or corporate trustee constitution.

9.1 Although a loss of capacity is not an issue that arises because of death, if a member of an SMSF loses capacity, this can be fatal to the operation of the SMSF.

Where a member loses capacity, they are no longer capable of acting as a trustee or a director of a corporate trustee. There are two potential problems that result:

1. If the person is not automatically removed as a trustee or a director of the corporate trustee, it may not be possible for decisions to be made. This is particular a problem for two member funds as decisions either require unanimous or majority decisions – in a two member fund this will require both to consent to decisions.
2. Where the trust deed or constitution provides that the person is automatically removed from their position in the event of incapacity, the SMSF may no longer continue to satisfy

However, there is an exception to this rule, which allows the member's LPR to be appointed a trustee or a director in place of the member.¹⁸ This has to be done within six months of the member ceasing to be a trustee or a director.¹⁹ However, you need to check the terms of the trust deed carefully as it may not permit the LPR to be appointed as a trustee or a director or a person to remain a member where they are not personally a trustee or director.

A person will be a LPR if they are the trustee of the member's estate where they are under a legal disability or they are the member's attorney appointed under an enduring power of attorney.

It is a common misconception that the enduring power of attorney document must authorise the attorney to act as trustee of the SMSF or give the attorney power of the member's financial affairs. However, this is not correct. Section 17A(3) of the SIS Act merely provides that the SMSF will remain complying where a person who is appointed as a member's attorney acts as trustee or director in the place of the member. Therefore, this section will be satisfied where a person who is only appointed in relation to personal and health matters acts as a trustee or director in place of a member.

If the member does not have a LPR who can be appointed as a trustee or a director of the corporate trustee, the SMSF is at risk of being made non-complying unless:

1. the member's benefits are rolled out (which will usually require assets to be sold) to a retail or industry superannuation fund; or
2. a APRA approved trustee is appointed.

Generally both these options are not desirable.

9.2 It is our view that it is critical (non-negotiable) that each person who is a member of an SMSF has an enduring power of attorney in place to avoid these issues.

10.1 As discussed above, the discretion of the trustee of a superannuation fund to choose the recipient of a superannuation death benefit is a core principal central to estate planning, particularly where the benefits are in an SMSF.

10.2 But the Queensland case of McIntosh v McIntosh²⁰ has called this into question.

10.3 In McIntosh v McIntosh the deceased died with no Will, spouse, children or other dependants. His assets at the time of death were worth approximately $80,000 plus $450,000 of benefits in retail superannuation funds.

The deceased was survived by both his parents, who, under the rules of intestacy in Queensland, were the beneficiaries of his estate in equal shares. The parents had an acrimonious relationship even though they had been divorced for over 30 years.

The deceased's mother applied for and was appointed administrator of his estate.

Following her appointment as administrator, the deceased's mother applied to the retail superannuation funds for the deceased's superannuation death benefit to be paid directly to her on the basis that she was in an interdependency relationship with the deceased. The trustees of the three retail superannuation funds accepted her claim and paid all of the deceased's superannuation death benefit ($450,000) to her.

This substantially impacted on the benefit that was to be received by the deceased's father who would only get approximately $40,000 from the estate, compared to $266,000 if the superannuation death benefit was paid to the estate. Consequently, the deceased's father disputed the mother's right to receive the payment of the superannuation death benefit directly.

To resolve the issue, the deceased's mother applied to the Supreme Court for a direction that she did not have to account to the estate for the superannuation death benefit.

The deceased's father argued that the deceased's mother should have to account for the superannuation death benefit to the estate for the following reasons:

1. The deceased's mother appointed as the administrator of the estate by the Court and therefore had an obligation to gather in the assets of the estate.
2. She also had a fiduciary obligation, which required her to act honestly and in good faith for the benefit of the beneficiaries of the estate and not to allow a conflict of personal interest and duty to occur.
3. By applying for the superannuation death benefit personally, the deceased's mother breached both the above duties.

10.4 Atkinson J agreed with the deceased's father and ordered that the deceased's mother account to the estate for the superannuation death benefits, as the 'failure of the applicant to apply for payment to herself as legal personal representative was in breach of her fiduciary duty to act in the best interests of the estate, for which she may be held liable to the court.'²¹

In arriving at this conclusion, Atkinson J relied on the following:

1. The method of the appointment is an important distinction. An administrator is appointed by the Court whereas the 'appointment of an executor is the act of the testator exercising testamentary choice.'²²
2. There 'is an exception to the general rule that no one who has fiduciary duties is allowed to enter into engagements in which the fiduciary has or may have a personal interest conflicting with the interests of those whom the fiduciary is bound to protect. The exception is described more precisely by Hope JA in Mordecai v Mordecai: ²³
3. That exception is where a testator or settlor, with knowledge of the facts, imposes on a trustee a duty which is inconsistent with a pre-existing interest or duty which he has in another capacity. In that situation the trustee is not thereby debarred from accepting the trust or from performing the duties which are imposed under it.

   The exception does not however extend to allowing a trustee, by the trustee's own act, voluntarily to put himself or herself into a new position of conflict.' ²⁴

4. Although there is an exception to the fiduciary's obligation to avoid conflicts, Atkinson J held that it does not apply where the person administering the estate is appointed by the Court. This is because the deceased did not, with full knowledge of the issues, impliedly authorise the conflict by appointing his mother as his executor under a Will.
5. 'An administrator of an intestate estate has a duty to apply for payment of the superannuation funds to the estate. The administrator has no proprietary right to the funds but has standing to compel the trustees of the fund to exercise their discretion to pay out the funds.'²⁵
6. If the mother did not have a person conflict, she would have as administrator applied for the superannuation death benefit to be paid to the estate.

11.1 The conflict issue that forms the basis of the decision in McIntosh v McIntosh has been explored in how it applies to executors appointed under a Will in the South Australian case of Brine v Carter²⁶.

11.2 In Brine v Carter, Professor Brine died with two superannuation accounts with UniSuper. He appointed his three children and his de facto partner Ms Carter as his executors. Ms Carter applied for the death benefit to be paid to her. The other executors sought an order requiring (among other things) that Ms Carter account to the estate for the superannuation benefit she received, due to the conflict of interest caused by her being an executor of Professor Brine's estate.

11.3 Justice Blue found:

1. Ms Carter as the executor was in a position of conflict in relation to Professor Brine's superannuation benefits;
2. the mere fact she was appointed as an executor did not by itself mean she was authorised to act in that position of conflict in relation to the superannuation benefits;
3. as the other executors acted on behalf of the estate in claiming the superannuation benefits from UniSuper, they consented to her claiming the death benefit despite the >conflict; and
4. Ms Carter was not liable to account to the estate for the benefit.

11.4 This case is in some ways consistent with, and in some ways expands, the decision in McIntosh.

12.1 The law about the extent to which an executor or administrator has a conflict and can claim superannuation benefits for themselves is developing. There is still some doubt about the extent to which the 'conflict restrictions' apply to an executor. Also, there is not yet any authority about whether a conflict of interest arises where a person has the third role of decision maker in the fund, or where there are documents in place directing benefit payments that are intended to be binding but are in fact not.

12.2 These cases have significant practical implications. In particular, we are concerned that the cases may result in the following:

1. Where the superannuation benefits are in a retail or industry superannuation fund, the trustee of the fund will, out of an abundance of caution, refuse to pay or not even consider paying the superannuation death benefit personally to a person who is also the >executor or administrator of the estate.

2. If this position is adopted by the trustees of retail and industry superannuation funds, we are concerned that:

   1. where the surviving spouse is also the executor of the estate (as is usually the case), the superannuation fund trustee will not pay the superannuation death benefit to the surviving spouse as a pension, which will potentially result in additional tax being payable; and
   2. the estate being the default payment option for the superannuation death benefit, even though this may not be the desired outcome.
3. An increase in the number of challenges to the trustee's exercise of discretion where the beneficiary of the superannuation death benefit is also the executor or in the case of an SMSF, the controller of the SMSF.

12.3 As a result, we should be cautious where a person who may wish to be considered as a beneficiary of superannuation benefits is involved with making the decision, or may be the executor or administrator of the estate.

12.4 Advisers must ensure clients' arrangements are structured so executors and administrators are not unintentionally prevented from claiming superannuation. There are a variety of steps advisers can take to ensure benefits are paid to intended recipients despite conflicts that may occur.

12.5 Advisers should consider the following points from Brine v Carter:

1. Merely being appointed as an executor is not enough to absolve a person from a conflict in claiming the superannuation for themselves (as opposed to claiming it for the estate).
2. If a person wants their executor to receive their superannuation, they should include an express provision the Will confirming the person can claim the superannuation despite being in a position of conflict.
3. If a person who wishes to claim the superannuation is appointed as executor and there is no provision authorising them to do so they should consider renouncing their appointment as executor.
4. If an executor wishes to claim the deceased's superannuation benefits and there is no clause in the Will authorising this, they should preferably get the consent of the other executors or, at a minimum, ensure the other executors are informed about the superannuation arrangements and are given the opportunity to claim the superannuation for the estate.

12.6 To overcome this issue, there are a variety of steps we can take to ensure the benefits are paid as intended despite the fact that there may be a conflict.

1. Appoint someone other than the intended recipient of the superannuation death benefit as the executor. This can be quite difficult as it is common for the intended recipient of the superannuation death benefit to be the obvious choice as the executor (for example, the surviving spouse).

2. However, where there is another suitable person to act as the executor, this is a potential option as it removes the conflict completely.

3. Remove the superannuation trustee's discretion and force the superannuation death benefit payment to the intended recipient by way of binding nomination, reversionary pension or specific trust deed provision.

4. Although this option deals with the conflict issue, it does not address the usual concerns that arise when making a decision on how the superannuation death benefit is payable in advance of the death of the member.

5. Provide the trustee with a direction or non-binding nomination that clearly authorises the trustee of the superannuation fund to pay the superannuation death benefit to a person in a conflict position.

6. Although this nomination will not be binding on the trustee, it may be sufficient to remove the concern regarding the potential conflict.

7. Include a clause in the Will that expressly authorises the executor to also pay or apply to receive the superannuation death benefit personally. This is our preferred option.

8. However, it will be critical that this clause does not authorise every conflict as this could have unintended consequences – for example, you do not want to authorise one child to apply for the superannuation benefits where it is intended to be split between all the deceased's children equally. As a result, where I have included a conflict clause in a Will, it is very specific and expressly authorises a conflict in a limited situation.

   Finally, the will maker must understand the conflict and they are allowing the person to claim the superannuation benefit despite it. One important aspect of the decision in Brine v Carter was that Professor brine would not have understood the complex superannuation arrangements and therefore in appointing Ms Carter as an executor could not be said to authorise her to act in that position of conflict.

9. CONCLUSION

10. Although this paper does not address all the issues with superannuation in an estate planning context, hopefully it provides a useful insight into the breadth of issues that must be considered when you are engaged to prepare even the simplest Will for a client.

    As advisers we must ensure that we have prudently considered the issues relating to the superannuation death benefit in drafting a Will, including ensuring the Will is structured correctly to deal with all the possible alternatives that may arise.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.