Nathan Rutherford, a lawyer with Cooper Grace Ward, said there is no hard and fast rule on when a trust deed needs to be updated, but the year a deed was written could help determine whether any action needs to be taken.
Mr Rutherford said the first date to be aware of is 1997 which saw the introduction of BDBNs into the super environment.
“There have been a number of big changes to superannuation law in the 27 years since and it can be a little bit scary when we come across a trust deed that doesn’t allow clients to make binding nominations,” he said.
“So, the first takeaway is, if your trust deed was made before 1997, it’s time to update it to make sure your clients can do binding nominations.”
Ten years later, in 2007, simple super reforms brought the concept of account-based pensions into super law and Mr Rutherford said if clients are using a trust deed from before 2007, then they might not be able to commence an account-based pension.
“They might be stuck with the old, allocated pensions and complying pensions, which are nowhere near as fun to deal with,” he said.
“If your client has a trust deed from before 2007, again, it’s worth having a look at it and make sure it still suits the client’s needs.”
Finally, 2016 saw budget changes to super and what is known as permissive and prescriptive trust deeds, which Mr Rutherford said are particularly relevant for the 2016 changes.
“Permissive trust deeds deal with the really important things like binding nominations and allow the trustee to be flexible and do anything within superannuation law for the less important things,” he said.
“Prescriptive trust deeds, on the other hand, provide a very detailed list of rules about what the superannuation trustee can do and they’re not as flexible as the permissive deeds.”
He added that one of the risks of a pre-2016 deed is that the rules of a prescriptive trust deed might not be broad enough to allow the trustee to do everything that they need to do to deal with things like transfer balance caps in an effective way.
“If your clients are using trust deeds from before 2016, it is recommended they have a look at those and see if they need to be updated,” he said.
Actually, the first date to look for is one between 1994 and 1995. This was subsequent to the introduction of the [i]Superannuation Industry (Supervision) Act [/i]and [i]Regulations[/i], and it was the first and only compulsory amendment of superannuation fund trust deeds.
Without an amendment during this timeframe to incorporate the necessary provisions to allow a fund to elect to become a regulated fund, it could not continue to claim a concessional tax rate.