Published on 01 Dec 15
by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE
The decision of the Supreme Court of Queensland in Munro’s case establishes that, in order to be effective, a purported “binding death benefit nomination” needs to comply with the formal requirements of the superannuation fund deed, and/or relevant superannuation legislation. Any deviation will cause the nomination to be invalid, and therefore not binding on the trustee of a superannuation fund.
This article examines the decision and its implications for the drafting of binding death benefit nominations. In the author’s view, the case is a reminder to practitioners that pre-emptive measures can be taken to set out a person’s actual, subjective intention when entering into documents, and that relief may be sought to remedy a situation where the legal effect of a document differs from the subjective intent. The article discusses the nature of a binding death benefit nomination, and whether equity can rectify a power of appointment and voluntary settlements.