For many people their superannuation is a major asset. Very probably they would expect that in the event of their death the capital of the Superannuation Fund would pass according to their Wills. But this is not necessarily so. Superannuation funds are held by Trustees. The Trustees have discretion as to who among the dependants of the deceased member are to benefit. The superannuation Industry (Supervision) Act (“the SIS Act”) provided in Section 59 that the rules of a fund must not permit the exercise of any discretion other than by Trustees BUT trustees may permit a member to give notice requiring any benefit payable on or after a members death to a person or persons being the Legal Personal Representative or a dependant or dependant of the member. Subject to compliance with the regulations under the SIS Act such a notice is binding to the Trustees. Such a notice is called a “Binding Death Benefit".
The requirements of the regulations made under the SIS Act are that:
- The rule of the Fund must allow a member to make a binding death benefit nomination.
- The persons mentioned in the nomination must be signed and dated by the member in the presence of two witnesses each of whom is at least 18 years of age and neither of whom is a person named in the nomination.
- The nomination must contain a declaration signed and dated by the witnesses saying that it was signed by the member in their presence.
A nomination may be revoked, confirmed or amended. A nomination ceases to have any effect on whichever is the earlier of the three years it was first signed or last confirmed by the governing rules of the fund.
If you need your superannuation entitlements reveiwed under your will then call Costanzo Lawyers on 9894 5888.