Challenging super death benefits payments: Do clients really know who gets their super on death? - HopgoodGanim
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OCTOBER 2017
Challenging super death benefits payments:
Do clients really know who gets their super on death?
PRESENTED AT LEGALWISE SEMINAR OCTOBER 2017
Contact details Laura Hanrahan Senior Associate
P +61 7 3024 0416
E l.hanrahan@hopgoodganim.com.au
Paper last updated October 2017
Challenging super death benefit payments
2 HOPGOODGANIM LAWYERSChallenging super death benefit payments
Challenging superannuation death benefits payments:
Do clients know who gets their super on death?
Examine who can receive superannuation death benefits and the steps a
member can take in their estate planning to ensure their superannuation
death benefits are paid in accordance with their wishes.
• Binding death benefits nominations, trustee company control, and
reversionary pensions
• Cases on death benefit payments and how to challenge a death benefit
payment
• Case study: how the transfer balance cap will impact the payment of death
benefits and whether the transfer balance cap opens up any new avenues for
challenging a death benefit payment
3 HOPGOODGANIM LAWYERSChallenging super death benefit payments
Introduction Payment of superannuation death Section 10(1) of the SIS Act defines
benefits “dependant” to include:
Superannuation is increasingly a major • a deceased’s spouse;
asset for most Australians. It is a common misconception that a • a deceased’s child of any age; and
member’s Will automatically deals with • people who are, at the date of the
The aim of this paper is to examine superannuation death benefits. This is not deceased’s death, in an interdependency
who can receive superannuation death the case: superannuation death benefits relationship with the deceased,
benefits and the steps a member can take do not automatically form part of an
in their estate planning to ensure their estate, and cannot be primarily dealt with (SIS Act dependant). It is important to
superannuation death benefits are paid in in a Will. note that the superannuation fund trust
accordance with their wishes. deed can limit the above options, and
Who Can Receive Superannuation Death therefore it is important that advisors
Death benefit planning Benefit Payments? review the trust deed before giving
any advice regarding the payment of
There are a number of different elements Subject to any limitations contained in the superannuation death benefits.
that must be considered when dealing superannuation fund trust deed, a death
with superannuation death benefits, benefit can only be paid to a “dependant” The distinction must also be drawn
including: of the deceased, or to the legal personal between the SIS Act definition of
representative of the deceased.1 “dependant”, which determines who can
• the terms of the fund’s trust deed, which receive superannuation death benefits
are paramount and must be complied DEPENDANTS directly from superannuation funds, and
with; the income tax definition of “dependant”
• the requirements of the Superannuation Regulation 6.22 of the SIS Regulations in section 302-195 of the Income Tax
Industry (Supervision) Act 1993 (Cth) provides that on the death of a member, Assessment Act 1997 (ITAA 97), which
(SIS Act) and Superannuation Industry the deceased benefits must be paid to: determines the tax treatment of death
(Supervision) Regulations 1994 (Cth) benefits received (Tax Act dependant).
(SIS Regulations); • the superannuation fund member’s
• where there is a corporate trustee, the legal personal representative (LPR); or SIS ACT VS TAX ACT
terms of the company’s constitution and • one or more of the superannuation fund
the application of the Corporations Act member’s “dependants”. It is important to understand the
2001; difference between the definitions of a SIS
• the tax implications on superannuation Act dependant and a Tax Act dependant.
death benefits under the Income Tax 1 See Regulation 6.22 of the Superannuation Industry (Supervision)
Regulations 1994 (Cth)
The differences between the two
Assessment Act 1997; and definitions are outlined in the table below.
• the new transfer balance cap for
retirement phase superannuation
accounts.
Dependant: Section 10(1) of the SIS Act Dependant: Section 302-195 of the ITAA 97
Spouse at date of death Current or former spouse
Child of any age Child under 18 years
Person with whom the deceased had an interdependency Person with whom the deceased had an interdependency
relationship relationship
Dependant - ordinary meeting Dependant - ordinary meeting
4 HOPGOODGANIM LAWYERSChallenging super death benefit payments
DEFINITION OF SPOUSE Section 2F of Acts Interpretation Act 1901 It is important to note that for
(Cth) sets out a list of factors relevant in superannuation purposes a stepchild
Pursuant to section 10(1) of the SIS Act, determining whether or not a couple is in ceases to be a stepchild upon the death of
“spouse” includes: a de facto relationship. While the phrase the child’s natural parent. However the
“de facto relationship” is not used in the Succession Act 1981 (Qld) has changed
• a legally married spouse; SIS Act or SIS Regulations, the factors this position for the purposes of a will/
• another person who, although not are useful in assessing whether or not a intestacy and family provision application.
legally married to the person, lives with couple are spouses of the purposes of the A stepchild will remain a stepchild despite
the person on a genuine domestic basis SIS Act. The factors are: the death of their natural parent.
in a relationship as a couple (i.e. de facto
spouse); or • the duration of the relationship; INTERDEPENDENCY RELATIONSHIP
Section title here
• another person (whether of the same
sex or different sex) with whom the
• the nature and extent of the couple’s
common residence; Pursuant to section 10A of the SIS Act
person is in a relationship that is • whether a sexual relationship exists; and section 302-200 of the ITAA 97, two
registered under the law of the State or • the degree of financial dependence or persons (whether or not related by family)
Territory. interdependence, and any arrangements have an “interdependency relationship” if:
Section sub heading for financial support between them;
Section
Pursuant to section 995-1
“spouse” of an individual includes:
sub
of the ITAA 97 heading• the ownership, use and acquisition of
their property;
• they have a close personal relationship;
• they live together;
Section sub heading • the degree of mutual commitment to a • one or more of them provides the other
• a legally married spouse; shared life; with financial support; and
• another individual (whether of the same • the care and support of children; and • one or more of them provides the other
sex or a different sex) with whom the • the reputation and public aspects of the with domestic support and personal
individual is in a relationship that is relationship. care.
registered under a State or Territory
law; and Section 4(1) of the Relationships Act 2011 Persons may also have an
• another individual who, although (Qld) (formerly the Civil Partnerships interdependency relationship if they have
not legally married to the individual, Act 2011 (Qld)) defines “registered a close personal relationship and they
lives with the individual on a genuine relationships” to be “a legally recognised do not satisfy one or more of the criteria
domestic basis in a relationship as a relationship that, subject to this Act, may listed above due to one or both of them
couple. be entered into by any 2 adults, regardless suffering from a physical, intellectual or
of their sex.” An application to register the psychiatric disability.
However as noted in the table above, relationship must be made, supported by
section 302-195 of the ITAA 97 provides a statutory declaration and the prescribed Interdependency relationships may be
that a death benefits dependant includes documents. relationships between same sex couples5,
the deceased former spouse. but are more often an adult child living
A registered relationship is terminated: with and caring for elderly or sick parents,
A legally married spouse only ceases to • on the death of either party2; parents living with and caring for adult
be a spouse on divorce not at separation. • on the marriage of either party3; and children, or siblings residing together.
A registered relationship only ceases • by application for termination – effective
upon de-registration or marriage again once the Registrar registers the Payments to the estate
not separation. Therefore, in relation to termination4.
the deceased, there can be competing As noted above, SIS Regulation 6.22(2)
interests from more than one spouse for DEFINITION OF CHILD provides who can receive a death benefit.
payment of death benefits. A deceased death benefit must be paid to
Pursuant to section 10(1) of the SIS Act, either the member’s LPR, or one or more
SAME SEX AND DE FACTO and section 995-1 of the ITAA 97, a “child”, of the member’s dependants. Accordingly,
RELATIONSHIPS in relation to an individual, includes: death benefits may be paid to a member’s
estate irrespective of whether the member
The definition of “spouse” in the SIS • the individual’s adopted child, step- had any surviving SIS Act dependants or
Act was expanded by the Same-Sex child, or ex-nuptial child; not. However, if the member dies without
Relationship (Equal Treatment in • a child of the individual’s spouse; and leaving one or more SIS Act dependants,
Commonwealth Laws – Superannuation) • someone who is a child of the individual then the superannuation death benefits
Act 2008 to include people: within the meaning of the Family Law must be paid to the estate6.
Act 1975.
• in a registered relationship; and
• in a relationship as a couple living 5 Only prior to 1 July 2008 after the Same-Sex Relationship (Equal
Treatment in Commonwealth Laws – Superannuation) Act 2008 amended the
together on a genuine domestic basis. 2 Relationships Act 2011 (Qld), s 14(1)(a) definition of “spouse” to include same-sex couples
6 SIS Regulation, 6.22(2).
3 Ibid, s 14(1)(b)
4 Ibid, ss 15 and 18
5 HOPGOODGANIM LAWYERSChallenging super death benefit payments
If the superannuation fund trustee has -- to children who are 18 years or more, The table below provides a summary of the
made reasonable enquiries, and still but only if such children: form of death benefits that can be paid and
cannot find either a LPR or a dependant -- are financially dependent on the to whom those death benefits can be paid:
of the deceased, the trustee may pay the deceased and less than 25 years of
death benefit to such other individual as age; or Controlling Superannuation
the trustee determines7. -- have a disability of the kind
described in subsection 8(1) of the There are two levels of control in
How is it paid? Disability Services Act 1986. superannuation. Trustee control and
member control. In retail and industry
Subject to any restrictions contained in If a death benefit is paid in the form of superannuation the trustee is a board and
the governing rules of the superannuation an income stream to a child who is less an individual member has no influence in
fund and in SIS Regulations 6.21(2) and than 25 years of age, the income stream the makeup of the board members. Self-
6.21(2A), a death benefit can be received must be commuted to a lump sum upon managed funds are very different in that
in the form of a lump sum (includes an the child attaining age 25 (unless the child the members are also the trustees of the
in specie transfer of assets), an income has a disability – in which case the income fund.
stream or a combination of the two. stream may continue).
TRUSTEE CONTROL
A death benefit must be cashed as a Accordingly, a death benefit can generally
lump sum to the deceased’s LPR and/ only be paid, by way of income stream, to Only relevant in self-managed funds and
or one or more of the deceased’s SIS Act the following persons: in advising clients with self-managed
dependants, unless the SIS Regulations • the deceased’s spouse; funds you must review the latest trust
permit income streams to be paid. A lump • persons who were financially dependent deed and if a corporate trustee is involved
sum can also include an in specie transfer upon the deceased at the time of the you should also review the constitution
of assets to a beneficiary. deceased’s death; of the trustee company. The reason for
• a child of the deceased under the age this is superannuation is a trust, but
As noted above, SIS Regulation 6.21(2A) of 18; unlike your typical family discretionary
limits the payment of death benefits in • a child of the deceased under the age of trust superannuation is perpetual.
the form of income streams to ‘entitled 25 years who was financially dependent In accordance with the SIS Act, SIS
recipients’: on the deceased at the time of the Regulations and the terms of the SMSF’s
• “dependants” of the deceased under the deceased’s death; and trust deed, a trustee must deal with a
SIS Act; and • a person with whom the deceased had deceased member’s benefits.
• in the case of children of the deceased: an interdependency relationship with at
-- to children who are less than 18 years the time of the deceased’s death.
of age; or
7 Ibid, 6.22(3)
Person SIS Act Dependant Tax Act Dependant Lump sum or Pension
Current husband / wife Yes Yes Either
Former husband / wife (divorced) No Yes N/A
De facto husband / wife Yes Yes Either
Same sex de facto Yes Yes Either
Either (but an income
stream must be commuted
Child under 18 Yes Yes
on turning 25 unless
disabled)
Either (but an income
Child aged 18 to 25 and financially stream must be commuted
Yes Yes
dependent on turning 25 unless
disabled)
Child aged 18 to 25 and not financially
Yes No Lump sum
dependent
Child aged over 25 and financially
Yes No Lump sum
dependent
A person who is financially dependent on
Yes Yes Either
the deceased
A person who was in “interdependency
Yes Yes Either
relationship” with the deceased
6 HOPGOODGANIM LAWYERSChallenging super death benefit payments
If the deceased member had not fund doesn’t presently allow attorneys to Section 55A of the SIS Act, which applies
implemented one of the member control confirm, revoke or make BDBN on behalf to the 2007/08 and later income years,
measures discussed above, then the of a member I would still include this provides that the governing rules of a
trustee will have the obligation and power in the Enduring Power of Attorney regulated superannuation fund must
discretion to decide which of the eligible document. not permit a fund members benefits
parties will receive the death benefit or a to be cashed after the members death
proportion of the death benefit. There are circumstances where the otherwise than in accordance with the
lack of certainty created by a trustee’s SIS Regulations. The governing rules of a
The decision of Katz v Grossman [2005] wide discretion can be problematic. For fund are invalid to the extent that they are
NSWSC 934 highlights how critical it is to example, it will be particularly important inconsistent with this provision of the SIS
address the issue of succession of trustee to remove a trustee’s discretion where: Act.
control on the death of a member.
• the member is part of a blended family As noted above the SIS Regulations
MEMBER CONTROL and wants their superannuation to be provide that death benefits may, subject
paid to a particular family member (for to certain limited exceptions, only be paid
Subject to the provisions of the relevant example, the member’s children from to a member’s LPR, or one or more of the
trust deed a member can take steps to their first marriage, rather than to their member’s dependants.
control the payment of their death benefits second spouse);
by anyone or more of the options already • there is likely to be argument between Subsection 59(1) of the SIS Act contains a
outlined above. Careful consideration the member’s possible beneficiaries prohibition against the governing rules of a
should be given to any decision by the as to who should receive the death superannuation fund permitting discretion
member to take control of the payment of benefits; to be exercised by a person other than
death benefits as removing the discretion • there is a risk of dispute between the the trustee, but this prohibition does not
of the trustee creates certainty and controllers of the superannuation fund apply to self-managed superannuation
inflexibility upon the death of the member. following the member’s death; or funds (SMSFs). Despite this prohibition
• there is a risk that the controllers will subsection s59(1A) allows the governing
When clients choose to implement one of not distribute the death benefits in rules of a fund to permit a member to give
these control measures it is important that accordance with the member’s wishes. the trustee a notice in accordance with the
the estate plan is reviewed regularly to SIS Regulations requiring the trustee to
ensure the measure remains appropriate. There are a number of ways that a pay the member’s death benefit to the LPR
There are significant consequences trustee’s discretion in relation to the or dependants of the member.
of using these control measures distribution of death benefits can be
inappropriately. removed. Non-Binding Death Benefit Nomination
Control by the member should also be Controlling Death Benefit Payments As the name suggestions, this type of
considered in the context of substitute nomination does not bind the trustee.
decision makers i.e., the enduring attorney There are generally four ways in which a Generally, when making an application
of a member. In drafting an Enduring member can choose to deal with payment for membership of a superannuation
Power of Attorney for a client you must of their death benefits: fund, a superannuation fund member is
consider that an attorney may in exercise • non-binding death benefit nomination; given the option to make a non-binding
of their powers deal with the principal’s • lapsing binding death benefit nomination. This nomination is effectively
superannuation interests. nomination; the nomination of a preferred beneficiary,
• non-lapsing binding death benefit and without doing more, the power to
The Superannuation Complaints Tribunal nomination; and make the final decision as to whom death
in a determination (D07-08/030)8 • nominating a reversionary beneficiary benefits will be paid still rests with the
confirmed and acknowledged an attorneys for a pension. trustee. As discussed above, the trustee’s
power to complete and sign a BDBN on decision must be made in accordance with
behalf of a member. As a result many The payment of death benefits from a SIS Regulation 6.22.
of the retail and industry funds have superannuation fund is determined in
amended their rules to specifically prohibit
accordance with the governing rules It is also important to note that under
attorneys signing BDBN on behalf of a of the superannuation fund, and not in general trust law, a trustee must act in
member. accordance with the terms of the deceased good faith, responsibly and reasonably.
members Will.
It may be necessary to limit or direct the It seems to me that there is little upside
use of this power by an attorney. One The payment of death benefits from to a non-binding nomination and perhaps
obvious measure which can be included in a superannuation fund is therefore that is because in preparing estate plans
an Enduring Power of Attorney particularly ultimately a matter for the discretion of for clients one objective is to provide
if the client has a lapsing BDBN is to the trustee of the fund, unless legislation certainty for your clients. Particularly
include power for the attorney to confirm or the superannuation fund’s governing with clients who have super in a retail or
the existing BDBN but not to revoke or rules provide otherwise. industry fund we cannot plan appropriately
amend. Even if the retail or industry including their death benefits if we do not
know where it will be paid, this is crucial in
8 D07-08\030 [2007] SCTA 93 (3 September 2007)
7 HOPGOODGANIM LAWYERSChallenging super death benefit payments
blended families when there is likely to be It is also important to note that SIS operating standards set out in the SIS
competing claims on the death benefits. Regulation 6.17A does not apply to SMSFs. Regulations. As noted above, subject to
That is, a SMSF can, by the terms of its limited exceptions specified in the SIS
Non-binding nominations have more of a trust deed, set out its own requirements Regulations, death benefits must be
role in SMSFs because we can control the for the making of a binding death benefit cashed in favour of a member’s LPR and/
succession of the trustee, i.e., control the nomination. As you will see from the or one or more of the member’s SIS Act
person/s who have the discretion to pay recent case law (discussed later in the dependants.
the death benefits. paper) making a BDBN in accordance
with the terms of an SMSF trust deed is In essence a non-lapsing binding death
Lapsing Binding Death Benefit paramount to ensuring the nomination will benefit nomination is only available if the
Nomination be binding. trust deed of the SMSF gives its members
the power. As we will see in the relevant
The SIS Regulations allow members of The main limitation of lapsing BDBNs is case law it is vital that any nomination
regulated superannuation funds to make the member losing capacity and being in an SMSF is in accordance with the
binding death benefit nominations. A unable to confirm the BDBN before requirements of the specific SMSF deed.
valid binding death nomination binds it lapses. Although some of the good I have seen and continue to see advisers
the trustee in respect of the payment SMSF deeds allow an attorney of the who have a pro forma BDBN and just roll
of the deceased’s death benefits, which member to exercise the member’s it out for each client without checking that
effectively removes the trustee’s decision rights if the member is incapacitated it complies with the specific SMSF deed of
making power. it is also important that the member the client. This practice is dangerous.
address issue in their enduring power of
SIS Regulation 6.17A provides that the attorney document. To address the issue These are a fantastic tool, providing you
trustee must pay the member’s benefit to sufficiently the member should decide have the right powers in the deed and the
the persons nominated if: whether they want their attorney to have members do not have any connection with
• the person nominated is the LPR or a power to exercise their rights as member NSW, they provide certainty for the client
SIS Act dependant of the member; of the fund and make express directions and can be tailored to provide for various
• the proportion of the benefit that or limitations in the enduring power of income streams, lump sum payments
would be paid to that person is certain, attorney. Also consider whether power or transfer of assets in specie to the
and readily ascertainable from the to enter conflict transactions should be respective dependants.
nomination; included i.e., if the attorney is given power
• the notice is in writing, signed and to confirm, make, revoke or change a Reversionary Beneficiary
dated by the member in the presence binding death benefit nomination and the
of two witnesses (each over the age of attorney is a potential beneficiary. When a member commences an income
18 and neither being a person who is stream prior to their death, the member
nominated in the notice), and contains Another limitation with BDBNs in retail can nominate a reversionary beneficiary
a declaration, signed and dated by the and industry funds is their inflexible forms to receive the payments from the income
witnesses stating that the notice was which typically do not allow an alternate stream upon the member’s death. The
signed and dated by the member in their nomination. continuation of the member’s income
presence; and stream will be subject to the reversionary
• the nomination is in effect. Non-Lapsing Binding Death Benefit beneficiary being an “entitled recipient”
Nomination the SIS Regulations.
SIS Regulation 6.17A(7) provides that
a binding nomination that is made in The SIS Regulations in relation to binding The trustee of the fund generally has no
accordance with the restrictions outlined death benefit nominations have no discretion in relation to the payment of the
above, will cease to have effect at the end application to SMSFs. The Commissioner pension to the reversionary beneficiary.
of the period of three years, after the day of Taxation released a SMSF determination But caution should be exercised to
the nomination was first signed, or if the that provides that section 59 of the SIS Act avoid a client nominating a reversionary
governing rules of the fund fix a shorter and SIS Regulation 6.17A do not apply to beneficiary when commencing an income
period, then at the end of that period. SMSFs. stream which is inconsistent with a BDBN.
Done properly a reversionary beneficiary
Although the SIS Act and SIS Regulations This means that the governing rules nomination will prevail over a BDBN in
allow superannuation fund members to of an SMSF may permit members to respect of the pension account. However
make binding death benefit nominations, make death benefit nominations that are the answer must be determined by
the governing rules of the superannuation binding on the trustee, whether or not in examination of the pension documents
fund trust deed must also give the circumstances that accord with the rules and the trust deed in each case.
member the power to make a binding in SIS Regulation 6.17A.
death benefit nomination. A reversionary beneficiary nomination is
Subsection 55A(2) of the SIS Act provides a great estate planning tool as it provides
Accordingly, it is important to review the that a death benefit nomination is not certainty and means the recipient of the
governing rules of the superannuation binding on the trustee, to the extent reversionary pension does not have to wait
fund to confirm that the fund permits that it nominates a person who cannot for the trustee to make a decision with
the making of binding death benefit receive a benefit in accordance with the respect to the member’s pension. That is,
nominations.
8 HOPGOODGANIM LAWYERSChallenging super death benefit payments
the member’s pension becomes payable to • take enough of the deceased’s death CHILD PENSIONS
the reversionary beneficiary immediately benefit as a pension so as to reach
upon the member’s death. the balance transfer cap, and take the All or part of a person’s death benefits
excess of the deceased’s death benefit can be paid to or amongst the person’s
Unfortunately however, the ability to as a lump sum death benefit payment. children who are:
pay a reversionary pension is limited to
individuals who are SIS Act dependants Depending on the age of the recipient, (a) under 18;
of the member and who are “entitled the age of the deceased and the length of (b) under 25 and dependant; or
recipients”. There are some additional time between the deceased’s death and (c) disabled,
complications now for members with payment of the benefit, the second option
transition to retirement income streams may be more tax effective. bearing in mind that, as outlined above, in
(TRIS) wanting to have a reversionary the case of (a) and (b) the pension must be
beneficiary nomination which the addition For example: commuted to a lump sum when the child
of the new definition in the SIS Act of turns 25.
‘Retirement Phase’. In short a TRIS As at 1 July 2017, Sally and Daniel each
is not Retirement Phase income and have an individual pension account of $1.6 However, there are special rules for
‘once a TRIS always a TRIS’ meaning the million and an accumulation account of death benefit pensions paid to children.
nomination of a reversionary beneficiary $400,000. When Daniel dies in 2020, Sally Essentially, a deceased’s children’s
in a TRIS will only be effective if the and Daniel’s pension accounts are each transfer balance cap will reset when
reversionary beneficiary is eligible to worth $2 million and their accumulation the pension ends. This means the child
receive a TRIS at the time of death of the accounts are worth $500,000. will have a full $1.6 million balance
member. transfer cap when they receive their
Sally’s first option is to maintain her own own superannuation. Unless the child is
Having a reversionary beneficiary means pension and accumulation accounts. disabled, this will usually occur when the
that on the death of the pensioner, the Given she has already reached the child turns 25.
reversionary beneficiary is admitted to transfer balance cap, she cannot receive
the fund as a member, they stand in the any further pensions. If Sally is to receive The child caps operate differently
shoes of the deceased pensioner and they Daniel’s death benefits, his $2.5 million depending on whether their parent has
become the member with the rights and must be paid to Sally as a lump sum. a transfer balance account at the time of
obligations in relation to that pension. their death.
Alternatively, Sally could commute her
Impact of Transfer Balance Cap existing pension back to her accumulation If the deceased parent did not have a
account. This would result in a $2 million transfer balance account (i.e. they were
It is important to bear in mind that as at 1 debit to her transfer balance account, not drawing a pension and their benefits
July 2017, a death benefit pension (other allowing her to receive Daniel’s entire were in accumulation phase), the child
than a child pension) will count towards death benefit pension. Daniel’s $500,000 may receive pension benefits up to the
the $1.6 million transfer balance cap of accumulation fund would need to be paid value of the transfer balance cap of $1.6
the recipient pensioner when the pension to Sally as a lump sum. In this scenario, million. Where there is one child, that
starts. Sally would have a total of $4.5 million in child will receive the full cap. Where there
superannuation, being the Daniel’s death is more than one child, then the children
This means that a death benefit pension benefit pension of $2 million, and an will receive a percentage of their parent’s
can only be paid to the extent that it would accumulation account of $2.5 million. cap in the same proportion that they will
not cause the recipient to exceed their receive the death benefits;
transfer balance cap. Where a pensioner REVERSIONARY PENSIONS
has already used up their transfer balance If the deceased parent had a transfer
cap on their own pension, any amount paid Where a pension automatically reverts to a balance account, the child may receive
to them on the death of their spouse as reversionary beneficiary, the credit to the a proportionate share of their parent’s
a reversionary pension or death benefit reversionary beneficiary’s transfer balance pension benefits in the form of a pension.
pension will cause them to exceed their account will not occur until 12 months
transfer balance cap. after the member’s death. Otherwise,
the credit balance transfer occurs when
A recipient’s options to ensure they do not the decision to pay the death benefit as a
breach their transfer balance caps are: pension is made.
• to commute some or all of their existing This means that reversionary beneficiaries
pension back to accumulation phase have an extra 12 month period to sort out
or remove it from the superannuation the receipt of their pension, even where
system so that the combined balance the pension would cause them to exceed
of their existing pension plus the their transfer balance cap.
reversionary or death benefit pension
does not exceed $1.6 million; or
9 HOPGOODGANIM LAWYERSChallenging super death benefit payments
Case law (a) the language used in the letter was wife, Mrs Munro, with the balance divided
insufficient to convey a binding intention. equally between his two daughters from a
There is a growing body of case law The letter indicated Mr Donovan previous marriage.
demonstrating the various ways in which “wished” his benefits to be paid to his
payment of death benefits are being legal personal representative, rather Following Mr Munro’s death in 2011, Mrs
challenged and the latest changes to than directed or required; Munro (as trustee of the superannuation
superannuation are bound to unearth (b) the nomination did not comply with fund) asserted that the nomination
future challenges. the “Statutory Requirements”. prepared by Mr Munro in 2009 was
not actually binding because it did not
1. Disputing the validity of death benefit Fryberg J held that the reference comply with the specific requirements
nominations in the trust deed to the “Statutory of the superannuation fund trust deed.
Requirements” was a reference to the Accordingly, Mrs Munro contended she
DONOVAN V DONOVAN [2009] QSC 26 requirements of regulation 6.17A(6) of the was entitled to exercise her discretion as
SIS Regulations. The formalities of the trustee of the superannuation fund and, in
A common issue which arises in SMSF SIS Regulations required the nomination accordance with the provisions of the trust
trust deeds is a requirement that a BDBN to be in writing, witnessed by two adults deed, pay all of the benefit to herself as
complies with the provisions of the SIS Act and contain a signing declaration from the surviving spouse.
or the SIS Regulations. This was the issue the witnesses. The letter prepared by
which arose in the decision of Donovan v Mr Donovan did not comply with these Mr Munro’s daughters applied to the
Donovan [2009] QSC 26. requirements, and accordingly was not court seeking orders that the binding
binding on the trustee. nomination was valid.
Facts
As a result of the invalidity of Mr Findings
In Donovan v Donovan, the Supreme Court Donovan’s nomination, his second spouse
of Queensland considered whether a letter received his entire SMSF portfolio instead However, the court held that the
written by a member of an SMSF to the of it being split 50% to his spouse and 50% nomination was not a binding nomination
corporate trustee of the fund constituted a to his daughter as provided for in his Will. for the purposes of the superannuation
valid binding death benefit nomination. fund trust deed, nor did it comply with
This position was affirmed by the more regulation 6.22 of the Regulations. The
Mr Donovan was a member of the SMSF recent decision of the Queensland court held that the use of the term
and the director of the trustee company. Supreme Court in Munro v Munro [2015] “Trustee of Deceased Estate” did not
The trust deed relevantly provided: QSC 61. appear to mean Mr Munro’s legal personal
representative. Mullins J observed:
(a) “A member may make a [BDBN] in MUNRO V MUNRO [2015] QSC 61
the form required to satisfy the Statutory “It may be that Mr Munro intended by
Requirements”; In the decision of Munro v Munro, the instructing the form be completed with
(b) “Statutory Requirements” was Queensland Supreme Court held that a “Trustee of Deceased Estate” to mean
defined to include “any law … which purported BDBN by the deceased, Mr his executors, but it is difficult to reach
must be satisfied by a superannuation Munro, was invalid because it did not that conclusion when the form itself
fund in order to qualify for income tax comply with the requirements of the trust provided for the option of specifying
concessions …”; deed. a legal personal representative and
(c) Where a member had made a valid advised how to complete the form
BDBN, the trustee must pay the death Facts accordingly”.
benefit to the nominated legal personal
representative or dependant of the In 2004, Mr Munro established an Accordingly, Mrs Munro was entitled to pay
member. SMSF of which he and his second wife all of Mr Munro’s superannuation death
were the members and trustees. The benefits to herself, instead of sharing
By letter dated 10 April 2006, Mr Donovan superannuation fund trust deed provided the benefits between her and Mr Munro’s
purported to make a nomination to the that if a BDBN complied with the deed daughters as Mr Munro had intended. The
trustee which specified his benefits and the relevant superannuation law, daughters were left with little inheritance.
were to be paid to his legal personal then it must be followed by the trustees.
representative for inclusion in his estate The deed required that a death benefit WOOSTER V MORRIS [2013] VSC 594
assets. nomination could only be made in favour
of a member’s dependants or legal By way of contrast, in the decision of
Following Mr Donovan’s death in 2007, Mr personal representative. Wooster v Morris [2013] VSC 594, the
Donovan’s second wife and his daughter failure of a beneficiary to strictly comply
from his first marriage were appointed In 2009, Mr Munro prepared what he with the SMSF deed provisions in relation
executors of his estate. thought to be a BDBN in favour of the to how a binding death benefit nomination
“Trustee of Deceased Estate”. He also ought to be served on the trustee was not
Mr Donovan’s wife argued the nomination prepared a Will, which directed that fatal to the validity of his BDBN.
was binding; his children from his first $350,000 of the death benefits paid into
marriage disputed this for two reasons: his Estate were to be paid to his second
10 HOPGOODGANIM LAWYERSChallenging super death benefit payments
Facts (a) Mrs Morris was the only person who In 2015, Mr Maurice arranged for his
would gain from the decision to defend accountants to prepare various documents
Mr and Mrs Morris were the only trustees the proceeding (a gain of $924,509.37); to remove Ms Perry as trustee and
and members of their self-managed (b) separate corporate identity of the replace her with his de facto spouse, Ms
superannuation fund. Mr Morris had two trustee should not protect Mrs Morris; Nicholson. The accountant prepared:
daughters from a previous marriage, and and
Mrs Morris had one son from a previous (c) Mrs Morris “controlled the position (a) minutes of meeting of the trustee
marriage. in favour of her own personal stake” of the fund, signed by Mr Maurice, Ms
and, in doing so, “failed to take proper Perry and Ms Nicholson;
Mr Morris made a BDBN on or about 18 account of the interests of the other (b) a confirmation of resignation as
March 2008 in favour of his two daughters beneficiaries”. trustee, signed by Ms Perry;
from his first marriage. Following Mr (c) an application to become a member,
Morris’ death on 27 February 2010, Mrs There was no right of indemnity out of signed by Ms Nicholson; and
Morris appointed Mr Ashman (her son the SMSF because the corporate trustee, (d) a consent to appointment as trustee,
from her first marriage) as a co-trustee of with Mrs Morris as its director, failed to signed by Ms Nicholson.
the self-managed superannuation fund. act impartially in the administration of
the trust and therefore breached their The trust deed provided that:
In May 2011, Mrs Morris and Mr Ashman obligations as trustees.
sought legal advice as to the validity of Mr (a) “The appointment or removal of a
Morris’ nomination. The trust deed for Wooster v Morris is a good example of trustee must be in writing and must
the fund required that the nomination be why advising clients pre-relationship that immediately be advised to any other
delivered to the trustee. Mr Morris had not maintaining their own separate SMSF trustee”; and
posted or otherwise delivered his BDBN makes a great deal of common sense to (b) “Binding death benefit notice
to the trustees, being himself and Mrs avoid practical problems. The inference means a notice given by a member or
Morris. On that basis, Mrs Morris and Mr in this case is that Mr Morris knew that beneficiary to the trustee in accordance
Ashman were advised that the BDBN was Mrs Morris would not be happy that he with Regulation 6.17A of the [SIS
invalid as it did not meet all of the trust was leaving his superannuation to his Regulations]” – i.e. a BDBN must be
deed’s requirements. daughters from his first marriage, so he provided to the trustee of the fund in
made the BDBN but did not actually give order to be valid.
Mrs Morris subsequently appointed a her notice as co-trustee. This would not
corporate trustee (of which she was sole have been a problem if he had maintained On 5 January 2017, Mr Maurice executed
director). The corporate trustee resolved a separate SMSF; although maintaining a BDBN directing the trustees of the
to pay all benefits to Mrs Morris on the separate SMSFs would incur greater SMSF to pay 100% of his death benefits
basis that the BDBN was defective and not compliance costs for a couple. to Ms Nicholson. On 6 January 2017,
binding. he executed a Will leaving his estate to
The failure of a beneficiary to strictly his two adult children and Ms Nicholson
Findings comply with the SMSF deed provisions in equally. Mr Maurice underwent brain
relation to how a binding death benefit surgery the following day. Mr Maurice
The matter was initially heard by a nomination ought to be served on the died on 7 March 2017, having been
superannuation referee who determined trustee may not be fatal to the validity of paralysed since his brain surgery.
the BDBN was valid and binding. Mrs the binding nomination. Nevertheless, it
Morris appealed to the Victorian Supreme is important to ensure that death benefit Following Mr Maurice’s death, Ms
Court. nominations comply with the SMSF deed Perry contended that despite the 2015
and superannuation law to prevent the documentation she remained a trustee
The court declared the BDBN was valid possibility of challenges such as in this of the SMSF and Ms Nicholson had not
and binding on Mrs Morris and Mr Ashman case. been validly appointed. In consequence,
as former trustees until 18 August 2011, she argued that Mr Maurice’s BDBN
and thereafter the corporate trustee. PERRY V NICHOLSON [2017] QSC 163 purporting to distribute his entire death
Unfortunately, the Court did not consider benefit to Ms Nicholson was similarly
the purported invalidity at length and The recent Queensland decision of Perry invalid.
simply declared it was binding. v Nicholson [2017] QSC 163 has placed
further emphasis on the importance of Findings
The plaintiffs were entitled to interest on ensuring compliance with the terms of the
the amount due to them (approximately SMSF trust deed. The court accepted there were some
$324,000) from 30 June 2010, calculated technical deficiencies in the 2015
pursuant to the Penalty Interest Rate Act Facts documents:
1983.
Mr Maurice’s SMSF was established in (a) there was no record of the trustees
Costs were awarded against the corporate 2009. Mr Maurice and his adult daughter, having accepted Ms Perry’s resignation
trustee and against Mrs Morris personally Ms Perry, were the original trustees of the as trustee: rather, the minutes
because: fund. Mr Maurice was the sole member. of meeting referred to Ms Perry’s
“removal” as trustee;
11 HOPGOODGANIM LAWYERSChallenging super death benefit payments
(b) there was no written notification to On 20 August 2003, Linda Grossman In the absence of the trustee being
Ms Perry of her removal as trustee; and signed documents purporting to admit appointed pursuant to the terms of the
(c) there was no document purporting herself as a member of the SMSF. As trust deed within the required time, the
to advise the other trustee of Ms Perry’s part of its decision, the court upheld the court agreed Linda was permitted as a
removal. appointment of Linda as trustee, but continuing trustee to appoint a further
determined her appointment as a member trustee. The power on which the court
Nevertheless, the court held that the was invalid. relied is found in section 6(4)(b) of the
minutes of meeting signed by each of Trustee Act 1995 (NSW). This section
the parties was enough to constitute a On 10 September 2003, Mr Katz died, provides that where a trustee is dead,
valid removal of Ms Perry as trustee. Mr leaving a Will naming Linda and his son, a new trustee may be appointed by the
Perry’s signature on the minutes was Daniel Katz, as his executors. There was surviving or continuing trustees, if no
considered enough to signify he had been also a non-binding nomination signed person is nominated for that purpose by
advised of Ms Perry’s removal. by Mr Katz, expressing the wish that his the instrument creating the trust.
superannuation death benefits be shared
The court is to hear further submissions equally between his children Linda and The court was of the view that the failure
from the parties as to the validity of the Daniel. to exercise the power of appointment
BDBN. which vested in the executors, within a
Probate was granted to Linda and Daniel reasonable time, meant that section 64(b)
There is a practice of non-lawyers on 5 August 2004, which was almost 12 could be relied upon.
preparing change of trustee documents. months after Mr Katz’s death, and this
As Perry v Nicholson demonstrates, timing is important. The ultimate result in this case was that
these documents are crucially important. Linda and her husband Peter, as the
Further, while the requirement that a On 5 December 2003 (before probate was trustees of the SMSF decided to pay the
BDBN must be provided to the trustee granted), Linda as the continuing sole whole of Mr Katz’s death benefits to Linda
of the fund in order to be valid is trustee purported to appoint her husband, directly. There is no grounds on which
questionable in the context of an SMSF. Peter Grossman, as a joint trustee of Daniel Katz could have challenged the
the SMSF with her. The appointment trustee’s decision, as it was an SMSF,
While Ms Perry was unsuccessful in her was made by deed of appointment, and which is probably why his application was
challenge of Ms Nicholson’s appointment expressed to be in accordance with the brought challenging the validity of the
as trustee, Mr Maurice’s failure to strictly Trustee Act 1925 (NSW). This was the appointment by Linda, of her husband as
adhere to the terms of the SMSF trust same provision Mr Katz had relied on, in trustee.
deed has led to costly and time consuming appointing Linda as trustee.
litigation, with the result that Mrs IOPPOLO V CONTI [2015] WASCA 45
Nicholson, his intended beneficiary, has Peter and Linda refused to confirm the
not yet received his death benefits. death benefits would be paid out equally The case of Ioppolo v Conti [2015] WASCA
to Linda and Daniel, in accordance with 45 demonstrates that, in exercising its
2. Absence of valid BDBN the non-binding nomination left by Mr discretion as to the distribution of a death
Katz, so Daniel commenced proceedings benefit, a trustee is not bound to follow a
Katz v Grossman [2005] NSWSC 934 challenging the appointment of Linda and direction in the deceased member’s Will.
Peter as trustees.
The decision of Katz v Grossman Facts
highlights how critical it is to address the Findings
issue of succession of trustee control on In 2002, Mr and Mrs Conti established an
the death of a member. Under the SMSF trust deed, the members SMSF of which they were the members
of the fund held the power to appoint and trustees. At the same time, Mrs Conti
Facts a trustee, the court considered the made a BDBN in favour of Mr Conti.
appointment of Peter, in light of these
Mr and Mrs Katz were members and terms. Due to Linda’s appointment as a In 2005, Mrs Conti made a Will specifically
individual trustees of their SMSF. Mrs member, being held not to be valid, the stating that her superannuation
Katz died on 28 July 1998. Probate of her only validly appointed member of the fund entitlements (approximately $648,000)
Will was granted to Mr Katz, he being the was Mr Katz. On Mr Katz’s death, the were be paid to her four children from a
sole executor and beneficiary in March power of appointment exercisable by him previous marriage, and that her husband
2000. as a member, vested in his executors. not receive any benefit. She appointed two
But, the SMSF deed also contained a of her children as her executors.
Prior to probate being granted, on 18 provision requiring any vacancy in the
May 1999, Mr Katz in his capacity as office of trustee to be filled within 90 days. In 2006, Mrs Conti made a second BDBN
sole trustee of the SMSF, purported to The appointment of Peter as a trustee in favour of Mr Conti. This nomination
appoint his daughter, Linda Grossman, occurred 13 days prior to the expiry of lapsed in 2009. By the time of Mrs Conti’s
as a second trustee. The trustees then that period, and the court was of the view death in 2010, she left no valid BDBN.
determined to pay Mrs Katz’s death that no appointment by the executors was
benefits to Mr Katz. likely to occur within the 90 day period.
12 HOPGOODGANIM LAWYERSChallenging super death benefit payments
Following Mrs Conti’s death, Mr Conti “It was open to Mr Conti to consider his parents. The deceased also had
sought legal advice in respect to his rights that the subsequent execution of the three superannuation accounts, the
and obligations as the surviving trustee binding nomination [in 2006] meant that death benefits of which totalled just over
of the SMSF. Mr Conti was advised that the expression of intention in the will $453,000. The deceased had made non-
he could continue as sole trustee of the [made in 2005] had been superseded, binding death benefit nominations for each
SMSF until six months after Mrs Conti’s and was no longer worthy of weight as fund in favour of his mother.
death. His solicitors recommended that an expression of the intention of the
shortly before the expiration of this period deceased member as to what should The deceased’s superannuation benefits
he appoint a second or corporate trustee. happen on her death.” did not automatically form part of his
They also advised that Mr Conti could pay estate. Following her appointment as
the death benefit to himself. Ultimately, Mrs Conti’s Will was of no administrator, the deceased’s mother
consequence. Mr Conti was entitled to pay successfully applied to each of the
On the basis of this advice, Mr Conti the death benefit to himself, rather than to superannuation funds to have all of
took control of the self-managed Mrs Conti’s children as she had intended. her son’s death benefits paid to her
superannuation fund. He paid the death personally on the basis that she was in an
benefits of almost $650,000 to himself, MCINTOSH V MCINTOSH [2014] QSC 99 interdependency relationship with him.
against Mrs Conti’s express wishes. The
following day Mr Conti resigned as trustee There is a conflict of interest which arises In response to enquiries from the
of the SMSF and appointed a corporate when a legal personal representative is deceased’s father’s solicitors regarding
trustee of which he was the sole director. also the sole beneficiary under a non- superannuation, the deceased’s mother’s
binding death benefit nomination, which solicitors stated that as it did not form part
Mrs Conti’s children commenced highlights the importance once again of of the estate, their client was not required
proceedings in the Supreme Court of dealing appropriately with superannuation to account to the estate for it. Following
Western Australia against Mr Conti and proceeds as part of your estate planning. further correspondence from the father’s
the corporate trustee. They claimed that: In McIntosh v McIntosh [2014] QSC solicitors, the mother applied to the court
99, it was held that the administrator for a declaration that she was entitled to
(a) upon Mrs Conti’s death, Mr Conti of a deceased estate was in breach receive the superannuation death benefits
was required by s 17A of the SIS Act to of her fiduciary duties because she personally, and that she was not required
appoint one of Mrs Conti’s executors as did not take active steps to have the to account to the estate for them. The
trustee of the SMSF in place of himself; deceased’s superannuation death court disagreed.
and benefits paid to the estate, instead
(b) until such time, Mr Conti had no preferring her own interests by applying Findings
power to deal with the death benefit. to the superannuation funds to have
the proceeds paid to her personally Atkinson J held that in applying to have the
The children also claimed that the Mr as a dependant of the deceased. In death benefits paid to her personally, the
Conti’s decision was void on the basis the absence of a binding death benefit deceased’s mother had breached:
that Mr Conti had acted in bad faith in nomination, the trustee of a deceased’s
making the determination, by preferring superannuation fund has discretion to pay (a) her duty under section 52(1)(a) of the
his own interests to that of Mrs Conti’s the death benefits to the deceased’s estate Succession Act 1981 (Qld) to collect and
children despite Mrs Conti’s testamentary or to his or her dependants. The court get in the real and personal estate of the
intention. held that while the discretion lies with the deceased and administer it according to
trustee, the deceased’s legal personal law; and
Findings representative has a duty to call on the (b) her fiduciary duty as the
trustee to exercise it. administrator of the deceased’s estate
Nevertheless, the court determined this to avoid a conflict of personal interest
distribution to be a valid exercise of Mr Facts and duty occurring.
Conti’s discretion as trustee.
The deceased died intestate at the age of The court held that an “administrator of
The Court of Appeal held that s 17A of the 40. He was not married and at the time an intestate estate has a duty to apply for
SIS Act defines the conditions that must be of his death he lived with his mother who payment of superannuation benefits to the
met if a fund is to fall within the definition cared for him as he suffered from bi- estate.”
of SMSF for the purposes of the SIS Act. polar disorder. The deceased’s parents
Accordingly, while the appointment of an separated when he was very young and In the absence of a binding death benefit
executor as trustee would have permitted, the deceased had lived with his mother for nomination, the trustee of a deceased’s
it was not required by the Act. most of his life. superannuation fund has discretion to pay
the death benefits to the deceased’s estate
Further, the Court of Appeal held that The deceased’s mother successfully or to his or her dependants. The court
there was no evidence to support the applied to be appointed as the held that while the discretion lies with the
children’s contention that the exercise administrator of her son’s estate, which trustee, the deceased’s legal personal
of Mr Conti’s discretion was trustee was had about $80,000 worth of assets in it. representative has a duty to call on the
vitiated by lack of bona fides. The court Under the intestacy rules, the deceased’s trustee to exercise it.
said: estate would be divided equally between
13 HOPGOODGANIM LAWYERSChallenging super death benefit payments
The deceased’s mother was ordered to pay If the deceased had made a BDBN in Findings
all of the proceeds of the superannuation favour of his mother personally, the
death benefits to the deceased’s estate for dispute would not have arisen. Similarly, The court determined that although
division in accordance with the intestacy the outcome would likely have been Ms Carter was strictly in breach of her
rules, which in this case, was equally different had the deceased executed a Will fiduciary duty, she was not required
between herself and the deceased’s father. appointing his mother as his executor. to account to the estate because she
was ultimately authorised by the other
Importantly, the court has provided some BRINE V CARTER [2015] SASC 205 executors. The court found that at the
clarity on conflicts by drawing a distinction date the sons lodged their competing
between: Similar issues arose in the more recent claim with UniSuper, they were aware of
decision of Brine v Carter [2015] 205. all the relevant facts and circumstances.
(a) where a testator appoints an By their conduct they had thereby
executor under his or her Will and Facts consented to Ms Carter pursuing her
that person is also the sole beneficiary own interests in claiming payment of the
under a non-binding death benefit In that case, Professor Brine was survived benefit in her personal capacity, without
nominations; and by his de facto partner, Ms Carter, and being obliged to resign as an executor of
(b) where the deceased dies intestate his three adult sons from a previous Professor Brine’s estate.
and a person who is the sole beneficiary relationship. Professor Brine’s Will
under a non-binding death benefit appointed Ms Carter and his sons as the However, the outcome would have been
nominations voluntarily applies to joint executors of his estate. In his Will, different had the executors remained
become the administrator of the ignorant of the true position and UniSuper
deceased’s estate. Professor Brine provided a life interest decided to pay the superannuation to Ms
to Ms Carter in his principal place of Carter in the absence of any competing
In the first situation, it is considered that residence and another residence, and contention in favour of the estate.
the testator has appointed the executor gave the rest of his estate to his sons and
knowing that there will be a conflict grandchildren. Ultimately however the court considered
between the executor’s duties and his or that, notwithstanding Ms Carter’s
her personal interests, and accepting that Professor Brine had two superannuation behaviour, there was no causal connection
conflict. The exception does not however accounts with UniSuper exceeding between her application and the ultimate
extend to the second scenario where a $630,000. One was an indexed pension outcome. The Court commented:
person voluntarily puts himself or herself annuity, which he nominated his de facto
into a new position of conflict. spouse to receive. The second was an “UniSuper gave no consideration to the
accumulation account, which was able to exercise of its discretion until it had
This conflict of interest which arises when be paid to the spouse, children or estate of received the competing contentions
a legal personal representative is also Professor Brine. from Ms Carter on the one hand and
the sole beneficiary under a non-binding the other three executors on behalf of
death benefit nomination, highlights the Rather than making a BDBN in relation the estate on the other hand … In these
importance of dealing appropriately with to the accounts, Professor Brine had circumstances, there was no connection
superannuation proceeds as part of your written to UniSuper expressing his wish between Ms Carter’s breach of duty and
estate planning. for the beneficiary of the accounts to the benefit she received.
be his estate. This was recorded with
The conflict of interest in this case UniSuper, however, given its form, was Nevertheless, if no competing
would have been avoided if the deceased unenforceable. contention had been advanced on behalf
had nominated his mother as the sole of or in favour of the estate, equity would
beneficiary under a binding death benefit Following Professor Brine’s death, Ms not have enquired into the prospect
nomination, rather than a non-binding Carter made applications to UniSuper to that the discretion would have been
death benefit nomination. It would also have the balance of each account paid exercised in favour of the estate and
have been avoided if the deceased’s out directly to her as Professor Brine’s Ms Carter would have been liable to
mother had not applied to be appointed as surviving spouse. For some months, Ms account.”
the administrator and had only applied for Carter failed to disclose the extent of the
payment of the superannuation proceeds. superannuation benefits to Professor This dispute could have been avoided
Brine’s three sons, in circumstances if Professor Brine had executed a valid
Irrespective of a conflict, a legal personal where they were potential beneficiaries BDBN as part of his estate planning.
representative should apply to have the of the accumulation account. Once the
deceased member’s death benefits paid sons became aware of the super and their Challenges to payments of death benefits
to the estate to maximise the amount for potential claim, they claimed the benefit
distribution to the beneficiaries. If for any as executors of the estate. We’ve already seen challenges to
reason that application is not made, the payments for death benefits on the basis
deceased’s death benefit will not form Nevertheless, UniSuper exercised its of the following:
part of the estate and the legal personal discretion in favour of Ms Carter. The
representative maybe in breach of their children executors then sued Ms Carter
duties. for breach of her fiduciary duty and sought
orders for her to account to the estate, as
in the decision of McIntosh.
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