A recent case in the Supreme Court of Victoria (Marsella v Wareham) recently made a ruling that on the surface offers some balance to the role of a surviving trustee of a self managed super fund (SMSF).
The previous famous case of Katz v Grassman saw the daughter of the deceased in her role as trustee of the fund (along with her husband who she appointed as the second trustee) award the full balance of her father’s SMSF to herself ignoring the claim of her adult, financially independent brother.
In Marsella v Wareham, the daughter of her deceased mother again appointed her husband as the second trustee and awarded herself the funds within the mother’s SMSF. The plaintiff this time was her stepfather of 32 years. The Court ruled that the trustees had failed “to give real and genuine consideration to the interests of the other dependants of the fund”. The Court also set aside the trustee’s decision to pay the entire death benefit to the daughter.
This article appeared in our March 2019 newsletter. Author: Stephen Mason
