By Graeme Colley
In running a DIY fund, you’d want to make sure the right amount of super is paid to the right person at the right time, wouldn’t you?
Therefore, it’s important to ensure that the fund’s documents are completed correctly and retained. This includes making sure any document does what you think it should and, if required, is witnessed by someone who’s not party to it. Otherwise, things can go awry.
As a starting point, let’s look at the fund’s trust deed and governing rules which are its centrepiece and define how the fund is to operate.
A valid trust deed is required to be executed by the parties to it and usually includes the person who establishes the trust (the settlor) and the corporate or individual trustees. The trust deed will be signed (executed) by the parties to the deed and independently witnessed and dated.
The main issues we see with some trust deeds is that the trustee has not signed the deed or signatures have not been witnessed. Where there’s an error it’s usually necessary to seek legal advice, and which may result in a deed of correction. Getting it right in the first place would have saved the additional cost and effort in correcting the issue with yet another legal document.
Usually, the fund’s trust deed governs the appointment, replacement or dismissal of a trustee. In carrying out this activity one of the most common oversights is a failure to consult the trust deed.
In many trust deeds, the appointment, dismissal or replacement of a trustee may require the consent of the members, for example, via a member resolution. However, we often see trustees making these decisions unilaterally, and then if the matter’s contested, ensuing fund decisions could be deemed invalid.
Some trust deeds require the completion of membership forms as a prerequisite for membership. Often the member fails to complete the form, leaving their membership at risk if ever contested.
Death benefit nominations are an ongoing issue and are frequently put to the courts and tribunals to adjudicate. For example, they may have not been correctly signed, witnessed, or the deceased’s wishes may be unclear or in dispute.
Under the legislation, a deceased person can have their super paid to a dependant including their spouse or child, irrespective of the level of dependency. It’s also possible to have a death benefit paid to the deceased’s legal personal representative, for distribution as part of the estate.
A death benefit nomination should be clear in its instructions. There’ve been many court cases resulting from a lack of clarity, and where the trustee was required to fall back on the other provisions of the deed to pay the death benefit.
Here are some other areas that require careful and correct documentation.
The number of signatories to a document can be important as well. This can depend on whether the trustee consists of individuals or is a company. Each Australian state has its own requirements.
If the trustee is a company, a document can be executed as it determines, including giving someone else the authority to sign the document on behalf of the company. Execution of the document will usually be supported by the company’s constitution or as a resolution of the company’s board.
The Corporations legislation has provisions which allows organisations dealing with companies to rely on certain assumptions that the document is executed correctly. It is assumed that a document has been executed correctly:
Each state has its own rules for individuals to sign legal documents, but as a rule a witness to a trustee’s signature should be:
If you think the rules about the signatures for individual or directors are difficult, then including an electronic signature on the document can be more complicated. Despite the huge increase in the electronic transmission of documents, placing an electronic signature on some documents is not possible. The reason is that if it is a formal legal document that requires witnessing, then a handwritten signature is necessary.
One thing’s for certain: if you’re not sure then get advice on what’s required under the fund’s trust deed, as it has an essential role to play. When it comes to executing a document for or on behalf of the fund, know what’s required if the fund has a corporate or individual trustee. Otherwise it could end up with a totally unacceptable result.