Advantages of the DBA Lawyers SMSF deed (2022-23)

DBA Lawyers latest SMSF governing rules and related documents include many value-added features. This article briefly explains why our SMSF documents are the best available.

Recent changes to DBA Lawyers’ SMSF governing rules

Our latest DBA Lawyers’ SMSF governing rules (version 2022-23) comes with the following upgrades:

• express exclusion of reg 6.17A given the High Court of Australia’s decision in Hill v Zuda [2022] HCA 21 confirming that the criteria in reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SISR) for binding death benefit nominations (BDBNs) does not apply to SMSFs. This decision confirms DBA Lawyers’ BDBNs provisions are in line with the law while many other SMSF deeds give rise to considerable complexity and uncertainty following the Hill v Zuda judgement.
• updated and streamlined contribution rules given the reduced reliance on the (40 hours within 30 days) work test for those under 75;
• clarification that an attorney acting under an enduring power of attorney who makes a BDBN on behalf of a member must have express conflict authorisation if they are to benefit directly from the new BDBN;
• enhanced SuperStream provisions to deal with rollovers, contributions, and release authorities;
• enhanced powers to restrict or limit membership including to obtain a duty concession;
• enhanced powers to invest in corporate collective investment vehicles, cryptocurrency, non-fungible tokens (NFTs), and blockchain technology;
• improved definitions and enhancements for clarity throughout; and
• relevant minor changes for all relevant legislative, regulatory, and strategic matters since our last update.

Naturally, the above upgrades are on top of many other value-added features.

General features of the DBA Lawyers’ SMSF governing rules

• Rules are up to date with superannuation law — We update our governing rules annually to cover all relevant changes (including superannuation law, case law and ATO materials).
• Strategic rules for power to appoint and remove trustees — Members who hold more than 50% of benefits in the fund have the power to appoint and remove the trustee. Click here for more information on SMSF succession.
• Allows for successor trustees — We provide for successor trustees (for example, a trustee’s legal personal representative (LPR)) to step in as trustee on the death or loss of capacity of an existing trustee. The DBA Lawyers’ company constitution contains similar provisions for successor directors.
• BDBNs — Our BDBN documentation provides a firm basis for making an effective BDBN as recently confirmed by the High Court and numerous prior Supreme Court judgements. Click here for more information on BDBNs. A strategic BDBN template is also provided which, among other things, allows for two levels of cascading and allows a member to make a pension automatically reversionary, overriding the pension documents if necessary. Click here for more information.
• Members’ wishes can be represented by attorney or executor — A member’s rights can also be exercised by the member’s LPR. Accordingly, where a member dies or is incapacitated, their LPR (eg, the member’s attorney acting under an enduring power of attorney or, following their death, the executors of the deceased’s estate) can exercise the member’s rights in the member’s place, eg, a withdrawal of benefits before a member’s death if the member has only days to live.
• Power to admit conditional members — It is very difficult to remove a member from an SMSF once there is a falling out. Members can be admitted subject to certain trigger events that force them to exit the fund automatically. This can serve as a useful tool especially where a second spouse or children are included in an SMSF and there is a falling out. Click here for more information.

Strategic and other advantages

• Latest SMSF strategies and traps covered — We include the latest SMSF, tax, stamp duty and asset protection strategies in our SMSF governing rules. For example, our SMSF governing rules protect a member’s pension payments from creditors.
• Trustees empowered to do normally restricted things — Many are not aware that numerous popular activities are prohibited unless express power exists. For example, there are general prohibitions on SMSF trustees carrying on a business (eg, a property development business), being remunerated for their services, investing in a non-income producing asset or alternatively investing in a single bulky asset without diversification. Our governing rules empower these activities and many more commercially realistic ventures. Trustees may be sued by a disgruntled beneficiary when they suffer any loss or damage, and maximum protection should therefore be sought.
• Detailed memo and PDS —These documents provide a sound overview of the super rules and greatly assist members and trustees to understand their duties, rights, and entitlements.
• Eligible for the Annual Update Service — For those who want peace of mind that their SMSF’s governing rules are kept up to date, we offer the Annual Update Service that provides our latest SMSF governing rules, PDS and SMSF Memo each 1 July for a small annual cost. Many advisers enjoy an added benefit from the Annual Update Service because all their SMSFs have our latest governing rules, allowing for easier administration and compliance.
• Backed by lawyer support — Every DBA Lawyers document package is reviewed and signed-off by one of our expert SMSF lawyers. Using us for documents means you get the best review and support possible. (Many other suppliers claim they offer legal sign-off but generally exclude all liability.)

DBA Lawyers’ latest deed

DBA Lawyers is well recognised throughout Australia by many accounting, legal, and financial planning firms as the leading SMSF law firm and document supplier. By using our Annual Update Service, you will have an up-to-date SMSF deed incorporating the latest legislative changes, developments and strategies.

An SMSF’s governing rules is the cornerstone that makes or breaks many SMSF strategies.

For an article on why SMSF deeds should be ordered from a law firm rather than a non-qualified supplier click here.

A new SMSF can be ordered here. An update to an existing SMSF’s deed can be ordered here.

We also offer a large range of related documents and services which complement our SMSF governing rules.

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Note: DBA Lawyers hold regular SMSF CPD training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au.

By Shaun Backhaus ([email protected]), Senior Associate, and Daniel Butler ([email protected]), Director, DBA Lawyers

30 June 2022