In the latest ASF Audits podcast, Scott Hay-Bartlem, partner at Cooper Grace Ward Lawyers, said whether an SMSF is using an off-the-shelf deed or a bespoke deed, it must achieve the results the client wants.
“The deed should really follow the client’s result and it’s really important to make sure that when you look at an off-the-shelf deed and it doesn’t actually get the client where they want to go for whatever reason, then you have to look at making sure the arrangements match the client,” he said
“No death benefit guardians are more popular but there are some very new deeds that won’t have death benefit guardians built in, and there are some 10-year-old deeds that do have death benefit guardians built in.
“It’s a matter of matching up that with what the client wants, and an off-the-shelf deed is designed so that everybody can do everything, but sometimes you don’t want everyone to be able to do everything.”
Mr Hay-Bartlem said it was important for lawyers to have an initial conversation with their clients to ensure that if there are differences or anomalies that don’t fit into a one-size-fits-all deed they are addressed.
“Things like death is an obvious one,” he said.
“For example, if someone loses capacity. I have too many fights between families on my desk where the SMSF is collateral damage.
“When you’re bringing in other family members, do you need to look at particular rules about forcing people out or voting rules? Are you on the end of the bad end [of the deal]? You’re the one with a small member balance and Mum or Dad have controlled the fund and that’s not in your best interest.
“There’s a whole range of times when we need to be thinking about SMSF deeds.”
Shelley Banton, head of education at ASF Audits, said from an auditing perspective a copy of the deed is paramount.
“There’s many reasons for that. Obviously, the most important one is that it allows us to confirm what the trustee structure is,” she said.
“It’s important that we have the whole chain of deeds on file because we need to ensure that the most recent deed is valid.
“Some of the issues I’ve seen is where the fund’s name just randomly changes from one name to another, or there’s a change in trustee.
“It could be signed or unsigned, and if it’s signed, it might be witnessed by a party to that deed.
“So it is important to have a valid trustee chain in place.”
Mr Hay-Bartlem said one of the most important things to remember in relation to a deed is that the trustee does everything.
“If the person making decisions [about the SMSF] is not a trustee, you don’t have valid decisions,” he said.
“Valid decisions are made for things like investment decisions, contracts for sale, and in the death benefit world, it’s going to be binding death benefit nominations and pensions, or it might be segregating assets.”
He continued that when it comes to legal disputes around death benefits, one of the first steps is to go back to the deed to see if everything “lines up”.
“We’ve seen cases in the courts where people actually went to court to fight over who the trustee is,” he said.
“So it’s important to make sure in the deed that all those things line up. It might be you don’t want to find your ex-spouse suddenly popping up as the trustee.”
Ms Banton said the deed should set down the rules and regulations of how the fund has to operate.
“It’s determining who’s who in the zoo after a member dies,” she said.
“All those sorts of questions can be very problematic, especially when you’ve got blended families involved.”
