A Modern Day Cinderella Story

The Cinderella like tale of Munro-v-Munro and how a simple preventable mistake, broke the hearts of his two daughters

To really understand this real-life story, to need to understand two simple legal facts about self-managed super funds:

• The trustee of an SMSF has discretion who to give the balance of your SMSF account to when you pass away.
• To remove this discretion and ‘bind the decision of the trustee to follow your instructions’, you need to sign a legally recognised Binding Nomination Form, making your wishes clear and override the discretion of the trustee.

Sounds simple enough, right?

Read in this article

Case Study: Mr Munro, a lawyer, deeply loved his two daughters from his first marriage. His second wife didn’t feel the same way.

He died at age 66 and in his Will he left;
a)  $350 000 to his second wife, and
b)  the remainder of his huge estate to his two beautiful daughters.

When it came to who would get the balance of his superannuation, he just assumed his SMSF would simply be included with all his other estate assets as part of his Will; as per an agreement he'd documented and provided to his daughters.

The mistake that broke their hearts

Mr Munro’s mistake was, he signed a Binding Nomination document that had a drafting error in it (- far worse than a typo because it changed the legal status of the document). 

It didn't actually use the required legal wording of the legislation, nomination of either:

a) the member’s “dependants”, or
b) the member’s “legal personal representative”.

Good intentions are not enough

Even though his intention was clear, the court, in Munro v Munro [2015] QSC 61, took the view the Binding Nomination he signed had faulty wording and therefore wasn’t actually binding on the SMSF trustee's decisions at all. The original wording simply stated the SMSF funds should go “to trustee of deceased estate”.

The unintended result

As this phrase was not recognized by the legislation, it therefore, had no effect on the decision of the SMSF Trustee.

• And who was now the SMSF Trustee? His second wife.

The're 3 common problems with Binding Nominations

1. Misunderstanding of the three-year expiry rule: 6.17A.
2. Poorly drafted SMSF deeds requiring strange wording.
3. Problems with mutual Power of Attorneys, Cascading Power of Attorneys and Testamentary Trusts.

Three things control where your SMSF Super goes when you pass away

1. The SMSF Trust Deed
2. The SMSF Trustee’s discretion
3. The SMSF Binding Nominations

What you can do about it

• Do nothing, in which case the super trustee decides where you super goes when you die
• Make a non-binding nomination to help the trustee decide, but the Trustee of your SMSF may just ignore it
• Make a binding death benefit nomination that expires every 3 years – provided you die within the 3 years your Trustee must follow your binding nomination – it is binding on the Trustee
• Make a non-lapsing binding death benefit nomination – it never expires and it binds the Trustee

Drew Browne is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses.  He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog here. You can connect with him on LinkedIn.  Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance.