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Rectifying deficient binding death benefit nominations

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.

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Denis BARLIN
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