Self Managed Super Funds – SMSF
  • HOME
  • WHAT IS AN SMSF
    • ADVANTAGES
    • SUPERANNUATION
    • THINKING ABOUT
    • FAMILY SUPER FUNDS
  • SETTING UP
    • SMSF ADMIN
    • RUNNING YOUR SMSF
    • INVESTMENT STRATEGY
    • TRUST DEED
    • CORPORATE TRUSTEE
  • OUR SERVICES
    • INVESTMENT ADVICE
    • SMSF SETUP
    • SMSF ADMINISTRATION
    • SMSF PROPERTY LOAN
    • FINANCIAL ADVICE
  • SMSF KNOWLEDGE
    • BUYING PROPERTY
    • BORROWING
    • WINDING UP AN SMSF
    • SMSF GLOSSARY
  • RESOURCES
    • SMSF ASSOCIATION
    • ARE YOU AN ADVISOR?
  • ABOUT US
    • AWARDS
    • ACCREDITATION
    • SMSF CAREERS
  • CONTACT US
  • LOGIN
Self Managed Super Funds – SMSF
  • HOME
  • WHAT IS AN SMSF
    • ADVANTAGES
    • SUPERANNUATION
    • THINKING ABOUT
    • FAMILY SUPER FUNDS
  • SETTING UP
    • SMSF ADMIN
    • RUNNING YOUR SMSF
    • INVESTMENT STRATEGY
    • TRUST DEED
    • CORPORATE TRUSTEE
  • OUR SERVICES
    • INVESTMENT ADVICE
    • SMSF SETUP
    • SMSF ADMINISTRATION
    • SMSF PROPERTY LOAN
    • FINANCIAL ADVICE
  • SMSF KNOWLEDGE
    • BUYING PROPERTY
    • BORROWING
    • WINDING UP AN SMSF
    • SMSF GLOSSARY
  • RESOURCES
    • SMSF ASSOCIATION
    • ARE YOU AN ADVISOR?
  • ABOUT US
    • AWARDS
    • ACCREDITATION
    • SMSF CAREERS
  • CONTACT US
  • LOGIN
Dec 13

The most important case ever in SMSF succession planning

  • December 13, 2013
  • SMSF Succession planning

The most important case ever in SMSF succession planning … and what it really means

This article was produced by DBA Lawyers.  Disclaimer: DBA Lawyers advised the plaintiffs during the course of litigation. We only mention facts made publicly available in the judgement.

The recent decision of Wooster v Morris [2013] VSC 594 is the most important decision ever regarding SMSF succession planning. However, we fear that the key message might be getting lost in the industry. Namely, what matters — what really matters — is the identity of who is holding the ‘purse strings’ upon death or loss of capacity.

Facts

Mr Morris (‘the deceased’) had two adult daughters from a previous marriage (Mrs Wooster and Mrs Smoel, that is, the plaintiffs). He also had a second wife, Mrs Morris.

The deceased and Mrs Morris were the members and trustees of an SMSF.

In March 2008, the deceased made a binding death benefit nomination. The BDBN was in favour of the plaintiffs in respect of all of his interest in the SMSF.

The deceased died in February 2010. His interest in the SMSF was $924,509.

Probate of the deceased’s will was granted to the plaintiffs (ie, the plaintiffs were the deceased’s executors).

After the deceased’s death, the surviving trustee (ie, Mrs Morris, the step mother of the plaintiffs) was left running the SMSF. Mrs Morris had a son from a previous relationship and Mrs Morris appointed him as her co-trustee.

Later on, the trusteeship of the SMSF was changed to a company called Upper Swan Nominees Pty Ltd. Mrs Morris was the sole director and shareholder of Upper Swan.

For reasons not mentioned in the judgement, the trustee decided that the BDBN was not binding. Instead, Mrs Morris, as sole director of the trustee, decided to pay none of the deceased’s death benefits to the plaintiffs but instead she decided to pay all the death benefits to herself.

The plaintiffs issued court proceedings seeking declarations that — among other things — the BDBN was valid and binding.

The parties agreed that this question be answered by a ‘special referee’, rather than the court.

The special referee found in favour of the plaintiffs, holding that the BDBN was valid and binding and that the plaintiffs were entitled to be paid $924,509 plus interest.

However, the trustee’s legal fees in defending the claim were ‘substantial’ and had ‘been paid only from the accounts in the name of the deceased’. For example, the court mentioned that the draft financial accounts for 2013 record legal fees of $302,699 and accounting fees of $43,560.

The trustee and Mrs Morris (ie, the defendants) argued that the plaintiffs should be paid only out of the deceased’s interest in the SMSF.

Question for the Court

The court considered a number of questions. One question was what was available to be paid to the plaintiffs: was it limited to only what the deceased had in the SMSF, or could the plaintiffs also access money that Mrs Morris had in the SMSF plus her personal money?

The court held that:

As a consequence of the decisions of Mrs Morris, if the defendants claimed an indemnity from the [SMSF], they would bear only a small portion of the financial consequences of the litigation, despite being entirely unsuccessful.  Rather, the loss would be borne almost entirely by the plaintiffs in the depletion of their interest in the [SMSF].

The court declared, among other things:

  • all moneys held by the SMSF (including Mrs Morris’ member accounts) were available to meet the payments; and
  •  the trustee and Mrs Morris personally were jointly and severally liable to pay all outstanding money.

Lessons for practitioners

Wooster v Morris contains many vital lessons that all SMSF practitioners must be aware of.

Lesson 1 — LPR does not automatically become a trustee
Wooster v Morris clearly dispels the myth that when a person dies their executors (legal personal representatives) automatically become a trustee in the deceased’s place. Here, the plaintiffs were the deceased’s executors but they did not become trustees.

Rather, the identity of trustee upon death is determined by the trust deed of the SMSF. In DBA Lawyers’ opinion there are very few deeds that appropriately distribute the power to appoint a trustee upon death or loss of capacity.

Lesson 2 — BDBNs are only a partial solution at best
There is a misconception that SMSF succession planning is completely handled by making a BDBN. Wooster v Morris clearly dispels this myth as well. In Wooster v Morris the deceased had made a valid BDBN but the plaintiffs still had to spend over three and half years in legal battles to obtain their money.

Accordingly, an adviser can not simply tell a client to make a BDBN and expect that succession planning is handled. This leads into the most important lesson from the case.

Lesson 3 — what really matters is the identity of who is holding the ‘purse strings’
Wooster v Morris clearly demonstrates that far more important than any BDBN is the identity of who is holding the ‘purse strings’ upon a member’s death or loss of capacity. As stated above, this depends to a very large degree on what the trust deed of the SMSF provides. There is huge variation in this regard. Although DBA Lawyers carefully draft their deeds to ensure sensible outcomes, many practitioners find that other SMSF trust deeds have poorly drafted provisions that invariably result in the ‘minority’ surviving member(s) wielding an unfair amount of power upon death.

 

Want to find out more, speak with Andrew Frith at Leenane Templeton

Article by Bryce Figot (bfigot@dbalawyers.com.au), Director, DBA Lawyers. This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.

 

 

  • Facebook
  • Twitter
  • Reddit
  • Pinterest
  • Google+
  • LinkedIn
  • E-Mail

Leave a reply

Your email address will not be published. Required fields are marked *

Archives

  • April 2020
  • March 2018
  • February 2018
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • April 2017
  • March 2017
  • November 2016
  • September 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • November 2012
  • October 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010

Categories

  • aged care
  • ATO
  • COVID-19
  • end of financial year
  • Federal Budget
  • financial planning
  • Government changes
  • insurance
  • investment strategies
  • Member insurance
  • money
  • news
  • pension
  • self managed super
  • self managed super fund tips
  • self managed super funds
  • SMSF
  • SMSF and Insurances
  • SMSF Borrowing
  • SMSF Investment
  • SMSF Legal
  • SMSF Property
  • smsf strategies
  • SMSF Succession planning
  • SMSF Tips
  • SMSF Trustees
  • Stronger Super
  • super
  • Super Strategies
  • superannuation
  • Tax advice
  • tax planning
  • trust deed
  • trust deeds
  • year end

Other Pages

  • Home
  • About
  • Awards
  • SMSF Careers
  • SMSF Specialist Advisors
  • Blog
  • Contact
  • Client Login

Our Services

  • Investment Advice
  • SMSF SetUp
  • SMSF Administration
  • SMSF Borrowing
  • Financial Advice

Contact Info

Head Office:
484 Hunter Street
Newcastle NSW 2300
Australia
Offices in:
Sydney – Brisbane – Newcastle

Phone: 02 4926 2300 Fax: 02 4926 2533 E-Mail: success@leenanetempleton.com.au
© 2023 — All Rights Reserved - The Self-Managed Super Specialists Pty Ltd
DISCLAIMER - PRIVACY STATEMENT - SELF MANAGED SUPER FUND HOME - ABOUT US
Liability limited by a scheme approved under Professional Standards Legislation.