SMSFs – Court rules on trusteeship with death and incapacity
The New South Wales Supreme Court has confirmed how trusteeship of an SMSF works where a member and trustee loses capacity and then dies.
5 November 2019
The New South Wales Supreme Court has confirmed how trusteeship of an SMSF works where a member and trustee loses capacity and then dies.
Executors facing unforeseen difficulties in selling an estate property within two years of the date of death are now protected by the Commissioner’s safe harbour rules.
There have been two recent cases in the Supreme Court of New South Wales that reinforce the importance of documenting agreements between family members to avoid disputes later on.
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Another administrator of a deceased estate has ended up in court because of the conflict between her role as administrator of her late husband’s estate and claimant of his death benefit.
The recent Victorian decision of Re Marsella; Marsella v Wareham (No 2) [2019] VSC 65, demonstrates what not to do as a trustee when paying a death benefit from a self-managed superannuation fund, and, very importantly, what not to do as a trustee’s adviser. The case is a perfect example of where specialist advice could have completely changed the outcome.
Over the last few years, courts have been called upon to consider whether the executor or administrator of a deceased estate can claim a superannuation death benefit for themselves, or whether they are conflicted from doing so.
The recent decision of Re Narumon Pty Ltd raises the question of what a trustee’s obligation is when continuing to pay a pension to a nominated reversionary beneficiary, or otherwise paying a death benefit, in circumstances where documentation is missing or incomplete.
As a general rule, the trustees and beneficiaries of a deceased estate are able to disregard any CGT implications from the sale of a deceased person’s principal residence, provided the sale of that property settles within two years of the deceased’s death.
In Re Narumon [2018] QSC 185, the Supreme Court of Queensland has confirmed that an attorney has the power to make, renew or extend a superannuation binding nomination on behalf of a member.
Cooper Grace Ward recently acted for a trustee of a self-managed superannuation fund in an application to the Supreme Court of Queensland in relation to the ability to pay a death benefit from the SMSF.
The recent decision in Perry v Nicholson [2017] QSC 163, has stressed the continuing importance of ensuring that all previous trust deed amendments and changes of trustee are properly documented, signed and dated and comply with the terms of the trust deed.