Warning to deed suppliers on e-signature validity
SMSF deed suppliers who accept e-signatures on their documents could leave themselves open to a legal challenge to the validity of payments made from the fund, according to an SMSF administrator.
SMSF Alliance principal David Busoli told SMSF Adviser that despite demand from clients, the group was erring on the side of caution by retaining wet signatures on formal SMSF documents to avoid ambiguity in financial services law around the use of e-signatures.
“Clients prefer e-signatures because they’re easy, but we prefer to do things that are correct — we use them to sign financials and minutes, but we will not use them for signatures on deeds or anywhere where a witness is required,” he said.
“Our view is that there is no test case on this and we have no intention to put any of our clients in a position where they are the test case.”
Disagreements have abounded in the legal fraternity in recent years around whether documents including SMSF deeds need to be physical rather than electronic, and contain original signatures in order to be compliant with section 127 of the Corporations Act.
Given the amount of recent litigation challenging the validity of SMSF death benefit payments in particular, Mr Busoli said it was only a matter of time before a test case around e-signatures within SMSF documents appeared before the courts.
“When there is no dispute, things go through to the keeper, but where there is a dispute, clever lawyers will be looking at ways of attacking the situation and this is one particular avenue,” he said.
“They would say that it’s not a valid deed, it’s potentially not a valid trust, that documents may have not been witnessed properly or that they haven’t been witnessed.
“Whether or not such a case would be successful remains to be seen, but we would like to see that case involve someone other than our clients.”
