The Royal Commission into Misconduct in the Banking, Superannuation & Financial Services Industry has revealed that a practice of false witnessing and backdating of beneficiary nomination forms has been widespread amongst some financial advisory firms, including those associated with major banks. The documents affected include the various types of death benefit nomination forms. This article outlines the proper process for witnessing these documents, the consequences of false witnessing and how a client’s death benefits are dealt with in those circumstances.Jack Coventry, Maddocks Lawyers
Day 11 of the Royal Commission exposed misconduct by major financial services providers. One exposure concerned the proper execution of beneficiary nomination forms used by super fund members to direct fund benefits following their death.
The witness statement of Peter Kell, Deputy Chair of the Australian Securities and Investments Commission (Kell witness statement), revealed the relatively widespread practice - within one major bank - of invalid or defective witnessing of beneficiary nomination forms. This is particularly concerning in light of the strict execution requirements prescribed by superannuation law and the dire consequences of failing to properly execute a beneficiary nomination form.
The two types of binding death benefit nomination forms (each with its own execution requirements), noted as having been the subject of improper execution in the Kell witness statement are:
The Kell witness statement revealed shortcomings on the part of financial advisors in relation to the proper witnessing of both of these nomination types.
Lapsing binding death benefit nominations are subject to more precise execution criteria. Regulation 6.17A(6) of the Regulations specifies that such nominations must:
Non-lapsing binding death benefit nominations actually form part of the Trust Deed establishing the fund and must comply with the legal requirements of executing a deed.
The Kell witness statement noted that, 2,490 client forms were affected by improper witnessing. The major bank has subsequently ensured that the affected forms were either re-executed with proper witnessing, or where that was not possible, trustees agreed to accept the forms despite their defective witnessing.
However, the consequences of improperly, or falsely, witnessing a signature can be significant, and can make an otherwise valid death benefit nomination ineffective. For example, a super trustee will be under no obligation to follow the directions set out in an improperly executed nomination: this may mean carefully thought out estate planning objectives are jeopardised. To ensure that a death benefit nomination is valid and binding, members and their advisors must take care that the above formalities have been strictly complied with.
For more information, contact Maddocks on (03) 9288 0555 and ask to speak to a member of the Tax and Revenue or General Commercial teams.
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 Section 59(1A) of the Superannuation Industry (Supervision) Act 1993 (Cth) (Act) allows a member of a superannuation fund to direct a trustee on how to provide its benefit’s on or after the member’s death.
 Section 59(1)(a) of the Act allows a trustee of a superannuation fund to enter into agreements with members which are not subject to the 3 year limit.
Paul is a Special Counsel in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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