Is your SMSF Trustee automatically bound by your valid Binding Death Benefit Nomination?

Posted by: Richard Thompson, Litigation lawyer explains with a peculiar case study...

The primary lesson learnt from the Supreme Court of Queensland's judgment of Munro v. Munro is that one must apply legal considerations in determining whether a particular BDBN is validly completed in accordance with the terms of the Deed.

But what happens if the Deed itself contemplates a BDBN but precludes the Trustee from being bound by such document?   

In the following case study, we show how important it is to consider the legal ramifications of the terms of an SMSF Deed well before executing a BDBN.

CASE STUDY

"Mr & Mrs Brown (second marriage) engaged a top tier law firm to draft and execute a Deed of Variation to the Self Managed Superannuation Fund Deed.  

Mrs Brown, who is receiving a pension from the Fund, validly enters into a BDBN nominating her children as the beneficiaries. 

Mrs Brown passes away, leaving Mr Brown as the sole Trustee and in charge of distributing Mrs Brown's superannuation account.  Is Mr Brown required to pay the benefit to Mrs Brown's children?

The Deed of Variation allowed, via Rule 6.4 of the Deed, for a Binding Death Nomination form to be executed and provides, within the deed, the prescriptive form that the Nomination must take.  Mrs Brown, as stated above, had complied with such requirements.

However, Sub- Rule 6.4(e) directs that where a member dies whilst in receipt of a pension, the benefit payable on that member's death will be governed by the appendix to the Trust Deed (not rule 6.4).  Therefore the provisions of the appendix will overide a Binding Death Benefit Nomination prepared in accordance with Rule 6.4 where the relevant member is receiving a pension from the Fund.

The Appendix provides that the Trustee "may" pay a lump sum to a person identified in accordance with Rule 6.4 or pay a reversionary pension to any one or more of the dependants of the deceased member in accordance with the relevant clause.

Accordingly, when read in conjunction with Sub-rule 6.4(e), Mr Brown retained a discretion on the death of Mrs Brown as a pension recipient that could override the Binding Death Benefit Nomination prepared by Mrs Brown in accordance with Rule 6.4 of the trust deed.

Therefore, legally, Mr Brown could use his discretion and not pay Mrs Brown's benefit to her children and decide to pay it to Mrs Brown's dependants, which would include himself.

Whilst the Nomination Form was completed in accordance with the Deed (unlike in Munro), the issue lies in the enforceability of the Nomination, which was obviously not the client's intention when engaging the firm to prepare the Deed.

Left unchanged, this could have had significant adverse consequences for the deceased's children had the nomination not be enforced by the Trustee.

Fortunately, Mr and Mrs Brown attended Anderssen Lawyers, we reviewed the deed, recognised the issue and had the clients sign a further Deed of Amendment to ensure that the nomination will at all times in the future be binding on the Trustee, subject to it being deemed a valid Nomination as is the usual course.

Our view of this provision, when read in conjunction with Sub-rule 6.4(e), is that the Trustee retains a discretion on the death of a pension recipient that could override any Binding Death Benefit Nomination prepared in accordance with Rule 6.4 of the trust deed, even if a BDBN could be validly prepared in accordance with the requirements of that Rule. 

To avoid such an issue for yourself or your clients, contact our Succession / Superannuation Team to allow us to review your Deed or Nomination and provide our position as to whether amendments are required – all free of charge. 

If you have any dispute in relation to a Deed or Nomination, contact our Litigation team for a free, no obligation chat about your situation.

Richard Thompson is an experienced solicitor in the area of Trust Deed disputes and forms part of the Litigation team and Succession/Superannuation team of Anderssen Lawyers.

Richard Thompson, together with team leader Kylie Wilson, will be presenting a seminar this Thursday afternoon entitled "Should you be drafting SMSF Binding Death Nominations?".  There are limited spaces available – to register for this event please click here.

Do we follow the Kiwis? - Property sellers must provide TFN and have a local bank account

Posted by: Tony Allen

In an endeavour to ensure that compliance with taxes on certain property transactions, particularly by non-residents, and to ensure that people buying and selling property for profit will be less likely to avoid paying their fair share of tax, the New Zealand government has introduced new legislation that requires buyers and sellers of New Zealand property to provide their tax identification numbers to the land registry and to have an onshore bank account. It is anticipated that this legislation will become law soon. Click Here for NZ Inland Revenue announcement on this legislation. Although there is an exemption for principal residences that exemption does not apply to offshore persons or trusts.

In light of public concern in Australia as to the impact of foreign investment on property prices in Australia measures such as this may be a salient development of which the Australian government ought to give consideration. 

Invitation for input about the Great Artesian Basin water resource plan

Posted by: Megan Tilbrook

Those of our clients reliant on the Great Artesian Basin may be interested to note that the Queensland Government is currently seeking input on the new plan proposed to manage this vast water source.

Public consultation seminar will be held during October and November with submissions closing 20 November 2015.

Source: Rita's Outback Guide

For those who are interested further information can be found at;

http://statements.qld.gov.au/Statement/2015/9/7/have-your-say-on-the-new-great-artesian-basin-water-resource-plan



Rabobank's Agribusiness Monthly July 2015

Posted by: Kylie Wilson

The Agribusiness Monthly provides timely information and analysis on agricultural conditions, commodity price updates and commentary on the latest sectoral trends and developments.

 

Key highlights:

• Grains & Oilseeds: Recent rain across east coast Australian cropping regions has been beneficial to crop conditions. Sub soil moisture levels have improved in many areas, and prospects of above average production in 2015/16 with late season follow up rain have increased.
• Dairy: Opening prices for southern producers averaged around AUD5.60/kgMS.
• Beef: Strong global demand and possible domestic supply shortages suggest that prices could increase further, however they may temper slightly through winter as the market considers the upcoming season.
• Sheepmeat: Lamb prices continue to follow a similar trend to 2014, with prices well above the five year average.
• Cotton:  Continued forecasts for a tightening of the world cotton balance sheet should see global prices supported through the 2nd half of 2015.

To view the full report, please click here.

E-conveyancing is (almost) here

Posted by: Valerie Chagnon-Couture

I recently attended the Property Exchange Australia (PEXA) launch event for Queensland.  PEXA will revolutionise the way that property transfer settlements take place.  Through PEXA, settlements will take place on an electronic platform and will no longer require that all parties come together in one location to exchange documents and settlement cheques.

The PEXA platform was created in collaboration with representatives from the Land Registry, Banks and Financials Institutions, The Office of State Revenue, Property Lawyers and Conveyancers as well as the Law Council of Australia and the Australian Bankers' Association.  Upon considering the large number of parties involved, it is understandable that the platform has taken some time to be finalised.

PEXA has already launched in New South Wales, Victoria and Western Australia and has received positive feedback from all parties involved.  While it has launched in Queensland, currently only settlement notices and caveats can be lodged through the platform.  The revised duties legislation is currently before Parliament and is expected to be presented at the next sitting.  Once the revised duties legislation is passed, property transfers will be able to be performed through the PEXA platform.

PEXA will allow for Titles Office documents to be signed electronically instead of passed around various parties for signatures and will allow for electronic lodgements of these documents with the Titles Office.  PEXA will also immediately transfer settlement funds electronically between financial institutions and solicitors' trust accounts removing the need for bank cheques to be drawn and delivered at settlement.

PEXA will also be launching a mobile application which clients can download to their smartphones.  This app will provide real time updates in relation to the progress of client's transactions.

Along with many other legal practitioners, we enthusiastically look forward to the launch of PEXA property transfers as the PEXA platform will allow us as a registered user to provide our clients with faster, safer and more efficient settlements and fewer disbursements in their property transactions.  Persons having an interest in this are free to contact me on 3234 3105 or valerie@anderssens.com.au.  Otherwise, watch this space for formal announcements as to the launch of the PEXA platform for property transfers.

Agribusiness Monthly June 2015

Posted by: Kylie Wilson

Key Highlights:

1. Grains & Oilseeds - El Nino threat continues to support local Australian grain prices despite exports being globally uncompetitive. Relative to global prices, domestic grains markets are expected to stay well supported throughout 2015.
2. Beef – Prices have lifted further, even though slaughter and production numbers continuing at record levels.
3. Dairy – The mechanics for a global market rebound are building; but are not likely until early 2016.
4. Sheepmeat - Strong demand for Australian lamb in the US and Middle East is compensating for a drop in Chinese demand, helping to stabilise prices. 
5. Wool - The Eastern Market Indicator (EMI) pushed to a four year high, gaining 11% through the month. While prices eased in mid June, prices remain 300c higher than at the beginning of the season (July 2014).

To view Full Report Click Here.

Property Bubble & CGT Measures as a Tool of Control of Escalating Property Prices?

Posted by: Tony Allen

Almost every day we read reports of concerns about the property bubbles in Sydney and Melbourne and of government investigations into breaches of the Foreign Investment Review Board investment rules. Click Here for report by ABC. It would seem that Australia is not the only country to be concerned about escalating residential property prices and the need to consider counter measures.

It has been reported that last Friday, 6 June 2015, the Taiwanese Legislative Yuan [parliament] passed a tax reform bill that will impose a capital gains tax [CGT] of up to 45 percent on profits made on the sale of property. The new tax plan, which is scheduled to take effect on Jan. 1, 2016, was expressed to form part of the government's efforts to rein in high residential housing prices and represents a major change from current practices. Click here for report by Central News Agency.

It will be interesting to see if the Australian government considers this CGT lead, whether in whole or in part, as a suitable counter measure to the escalating property prices around Australia.