the fact that it must be in writing
and signed and dated by the member
in the presence of two independent
adult witnesses.
unwitnessed or undated nominations
we see. People assume their wishes are
clear but often they are invalid.
as well as more responsibilities in
terms of compliance with complex
superannuation rules. The terms
`self-managed' and `DIY' are
disingenuous and professional
support is usually essential.
nominations annually. For instance, if
a nominated child beneficiary turns 18
and is no longer financially dependant,
16.5% tax will apply to any taxable
benefit they receive.
If there is no binding nomination that
is valid, the trustees of super funds
make the determination, but they
need to follow due process. When we
see disputes ventilated, it is often the
case that allegations are made around
the trustees making a determination
without following due process,
in terms of notices, quorums for
meetings, analysis of reasons given
(if any) and resolutions.
personal representatives of estates
that may be the subject of a legal
challenge, or to de facto spouses where
it seems clear that the relationship was
over at the time of death. Decisions
depending on your position.
to be the legal personal representative
(i.e. a spouse versus the de facto
spouse or a child versus another child
of the deceased), it would be prudent
to be clear as to who the legal personal
representative is. Some cases show
that there has been confusion as to
whether a death benefit is paid to
a person in their capacity as legal
personal representative or in their
personal capacity.
nomination?
fund but are less excited by the fact
that there are a limited number of
people to whom they can pay their
superannuation on their death. In
particular, it is usual for them to pay
a pension or a lump sum to a spouse
but, just as commonly, they may want
to put controls over that spouse's use
of the money, with a view to it being
available for their children when their
spouse passes away.
be as easily utilised as an asset-
transfer vehicle. Regulation 6.22 of SIS
Regulations 1994 states that benefits
must be paid to either or both of
the following:
· The member's legal personal
mandatory and strictly monitored.
smoothed over and nominations with
such breaches will be invalid.
the member has signed their date
of birth as the current date or the
witnesses have not signed at the same
time or at all. We also see a number of
trust deeds that predate 1999, and they
do not allow for binding nominations.
This means nominations are not
possible in that fund.
of thumb when preparing binding
nominations may be that proposed
beneficiaries need to be aged under 15
years where there is the usual three-
year nomination period. If they are
aged over 15 years it is possible they
would be a non-dependant (i.e. over 18
years of age) at the time of death, while
the nomination is still valid.
strict compliance with the regulations.
If a nomination is not carried out
correctly in the first instance, there is
usually no opportunity to `fix it'.
often not drawn by or executed in
front of lawyers. We suggest that you
engage a senior adviser to supervise
every step of a nomination from
consideration of the different ways to
protect beneficiaries to the execution
of a document aimed at achieving this
important task.
can safely and profitably traverse.