Removing a member from an SMSF is not a simple process, particularly where there is a dispute or some animosity among members.
Here are some situations DBA Lawyers has come across:
- family members have a falling out with a particular family member they want to remove from the fund,
- a member wanting to exit an SMSF and roll over their superannuation to an industry superannuation fund is precluded from doing so since the other family members do not feel it is an appropriate time to realise certain investments, and
- former business partners that share the same SMSF with their respective spouses have a falling out and wish to part ways.
Unfortunately, poor-quality SMSF documents and lack of prior planning complicate and prolong these disputes.
Rolling a member’s benefits from an SMSF
Broadly, regulation 6.28 of the Superannuation Industry (Supervision) Regulations 1994 provides that a member’s benefits in a superannuation fund must not be rolled over from the fund unless the member consents. Therefore, an SMSF trustee cannot simply remove a member from the fund.
Conversely, if a member wanted to be transferred out of the fund, they would need the SMSF trustee’s approval. Remember that all members of an SMSF are generally trustees as well. So what happens when trustees cannot agree?
The general law is that individual trustees must act jointly (Beath v Kousal [2010] VSC 24). If trustees cannot agree, no valid decision can be made. Further, Justice Street in Sky v Body (1970) 92 WN (NSW) 934 stated that: “Inherent in this basic system of trusts is the principle that trustees must act unanimously. They do not hold several offices – they hold a single, joint, inseparable office. If conflicting business considerations lead to such a divergence that the trustees are not able to act unanimously, then the simple position is that they cannot act.”
Therefore, if the trustees cannot agree, they cannot act.
What does the deed say?
A well-written deed may provide a solution if the trustees cannot agree. In Dulhunty v Dulhunty[2010] NSWSC 1465, Justice Slattery states the principle that trustees must act unanimously can be displaced by the trust deed: “The principle that trustees of [a] private trust must agree unanimously to a course of action may be displaced if the trust instrument provides otherwise.”
For example, an SMSF deed may allow for weighted votes in proportion to member account balances.
Further, the SMSF deed may also require certain powers to be exercised in a fiduciary manner, such as the power to appoint and remove a trustee (that is, the appointor power). A fiduciary power must be exercised for the benefit of all beneficiaries (Berger v Lysteron Pty Ltd [2012] VSC 95). Unless the SMSF deed provides that the appointor power is not a fiduciary power, it must be exercised for all beneficiaries or the exercise of that power could be subject to legal review.
Last resort
If there are no conditional memberships or powers in the deed to resolve the deadlock, the last resort may be to make an application to the court to remove the member. This process typically entails substantial time, costs and uncertainty regarding the final outcome. Further, unless there have been substantive breaches of trustee/director duties, the court may be reluctant to intervene and may not provide a practical solution.
With proper planning, one solution is to admit a member as a conditional member.
One solution is to have an appropriately worded SMSF deed and to admit a member on a conditional basis. These members would be admitted as a conditional member. The consent would operate such that, upon the occurrence of specific events including material disagreement, relationship breakdown or legal dispute, the trustee of the fund could use the consent to remove the ‘conditional’ member and transfer their benefit to another complying superannuation fund. This option is cost effective, reduces risk and removes uncertainty.
In the case of a spouse who is to be admitted as a conditional member, a binding financial agreement is also recommended to minimise uncertainty.
