Why choose a DBA deed? One (of many) reasons!

At DBA Lawyers we like to think of our SMSF deed as being the Rolls Royce of SMSF deeds. We constantly review, refine, test, debate and update it. And we’ve been doing so for well over 20 years. We are Australia leading SMSF law firm with the largest team of dedicated SMSF lawyers.

As a result we believe ours is the very best SMSF deed available.

In this article, I detail one (of many) reasons why a DBA lawyers SMSF deed is superior.

Who gets to select the trustee of the SMSF?

Naturally, the person who gets to appoint and remove the trustee of an SMSF has tremendous power. Many SMSF cases have essentially been debates over who gets to be the trustee of the SMSF, as there is a lot of truth to the old saying ‘possession is nine-tenths of the law’.

The answer to this question is found in the SMSF deed.

However, few SMSF deeds have strategic provisions to provide that the ‘appointor’ power is distributed in a sensible way.

What many SMSF deeds say … but not the DBA deed

Many SMSF deeds provide the power to appoint new trustees to either:

• the members or
• the trustee.

However, unless there are additional strategic provisions (which the majority of non-DBA deeds lack) these approaches can cause significant problems!

Consider an SMSF with a couple who are on their second marriage: Mike and Carol. Mike and Carol are the members and trustees of their SMSF.

Carol has the majority of the benefits in the SMSF, say $1 million. Mike only has a minority of the benefits, say just $50.

Carol has three daughters from a previous relationship.

Carol wants that — when she dies — her daughters (who are also the executors named in her will) get her SMSF benefits. Carol makes a binding death benefit nomination (‘BDBN’) to this effect. That is, the BDBN stipulates that when Carol dies her benefits must be paid to her three daughters.

Carol dies.

Unfortunately, the SMSF deed is drafted like most non-DBA SMSF deeds. It provides that the power to appoint trustees lies with:

• the trustee and
• if the trustee can’t or won’t act — a majority of members.

Therefore, when Carol dies, Carol’s children have no power to appoint themselves as trustees of the SMSF. This is despite the fact that they are executors named in her will. Even if her children as executors can exercise Carol’s member decisions, they do not form a majority of members! (Most non-DBA SMSF deeds do not even provide for a person’s executors to exercise their member decisions as this strategic point is also invariably overlooked.)

Mike, as the last surviving trustee, is now in control and holding the purse strings.

He determines that the BDBN is not binding based on a technicality. He decides to pay Carol’s death benefit to himself personally and nothing to the children.

Some what similar facts arose in Ioppolo v Conti [2013] WASC 389 (aka Ioppolo & Hesford v Conti). Refer here for our newsfeed comments on this case.

What the DBA deed says

However, the DBA SMSF deed is different. (For one thing, it expressly provides that BDBNs last indefinitely!)

We have crafted our documents over many years and strived hard to address the many different situations and competing interests that can arise.

The DBA SMSF deed is one of the few that strategically provides the power to appoint and remove trustees to one or more members who either individually or collectively hold more than 50% of benefits in the fund. Our deed also expressly makes it clear that if a member is dead or incapacitated, their legal personal representative (eg, the member’s attorneys acting under their power of attorney or, following death, their executors of their will) can exercise that member’s appointor rights.

Accordingly, under the DBA SMSF deed, Carol’s children can appoint themselves as the trustees. This means that they can — if there is a risk that the wishes of their late mother will not be respected — get themselves appointed and exercise practical control over the money. As Carol’s executors they have the power to change the trustee and vote on Carol’s behalf. Unfortunately, many non-DBA SMSF deeds leave these strategic points without any clarity and can result in death benefits going to unintended people and result in substantial costs and aggravation.

Conclusion

I’ve detailed one reason of the many reasons why the DBA SMSF deed is the best SMSF deed available. (Naturally, there are many, many other reasons too.)

If you want an SMSF deed that has been tested and refined day in and day out in for over 20 years in all sorts of SMSF disputes, audits, and novel strategies, the DBA deed is for you.

Every SMSF deed that we prepare is tailored and carefully checked. We ensure all deeds that leave our office are reviewed by at least one SMSF lawyer.

There are cheaper deeds. However, given that the deed is the critical document that makes or breaks many SMSF strategies, the DBA SMSF deed represents tremendous value.

To update an existing SMSF deed to a DBA deed, see http://www.dbalawyers.com.au/smsf-deed-update/.

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This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.