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Re Narumon Pty Ltd  
Unreported Citation: [2018] QSC 185
EDITOR'S NOTE

In this decision, Bowskill J considered whether certain binding death benefit nominations ("BDBNs") could be validly executed by attorneys under an enduring power of attorney. It is the first time that the issue has been judicially considered. Her Honour held that, in the circumstances of the case, a BDBN confirming and extending a previous BDBN could be validly executed, but her Honour refused to grant the relief sought in relation to a new BDBN. This decision will be of particular interest to estate practitioners as it impacts directly on estate planning, the drafting pf enduring powers of attorney, and superannuation.

Bowskill J

24 August 2018

Background

In 1992, Mr John Giles established the John Giles Superannuation Fund ("the Fund"), which was a self?managed superannuation fund. [1]. Mr Giles was the initial sole member. [1]. Mr Giles passed away on 14 June 2017. [1]. He was survived by his wife, Mrs Narumon Giles, their son, four children from Mr Giles' previous marriage, and his sister, Mrs Roslyn Keenan. [1]. Although Mr Giles' estate had a modest value, the benefits accrued by Mr Giles as a member of the Fund were significant. [5].

Mrs Giles and Mrs Keenan were appointed as attorneys for Mr Giles pursuant to an enduring power of attorney made on 25 January 2013, and then again on 5 June 2013. [6]. They were appointed as attorneys for financial and personal/health matters. [6]. They began acting as attorneys for Mr Giles in November 2013, according to the particular terms of the power of attorney. [7]. Mrs Giles and Mrs Keenan are also both members of the Fund. [8].

Narumon Pty Ltd ("Narumon") was the trustee of the Fund. [1]. Narumon applied to the Supreme Court of Queensland for declarations and orders in relation to the administration of the Fund. [3]. In the present decision, Bowskill J considered a number of issues which arose in relation to the relief sought. This summary only considers the main issue, which was whether certain BDBNs could be validly executed by the attorneys under the enduring power of attorney. 

Analysis

Mr Giles made five BDBNs between 2010 and 2013. [22]. The most recent was made on 5 June 2013 ("the 2013 BDBN"). [22]. It directed the trustee of the Fund to pay the benefits 47.5% to Mrs Giles, 47.5% to her son, and 5% to Mrs Keenan. [22]. On 16 March 2016, Mrs Giles and Mrs Keenan, in their capacities as attorneys for Mr Giles, signed a document entitled "extension of [BDBN] ", by which the 2013 BDBN was confirmed and extended for a further 3-year period ("the extension BDBN"). [24]. At the same time, Mrs Giles and Mrs Keenan also signed a new BDBN which nominated Mrs Giles and her son to each receive 50% of the benefit payable on Mr Giles' death ("the 2016 BDBN"). [25].

Her Honour first considered whether the 2013 BDBN signed by Mr Giles was valid.  She concluded that it was. [27]-[50]. Her Honour then turned to consider whether Mrs Giles and Mrs Keenan, as attorneys for Mr Giles, had the power to make the extension BDBN and the 2016 BDBN. [51].

Her Honour noted that the relevant deed contained no express power to "confirm" or "extend" the 2013 BDBN. [57]. However, this was of limited practical consequence, because the effectiveness of both the extension BDBN and the 2016 BDBN would depend, apart from the question of the power of the attorneys, upon whether the requirements of the deed relating to BDBNs were met. [58].

Her Honour then turned to consider whether Mrs Giles and Mrs Keenan, as attorneys for Mr Giles, could validly sign a BDBN for Mr Giles. Her Honour noted that there was nothing in the Fund deed or superannuation legislation which would prevent an attorney signing a BDBN for a member. [59]-[60]. Accordingly, the issue fell to be resolved according to the construction of the relevant provisions of the Powers of Attorney Act. [61]. Section 32(1)(a) of the Act provides that:

"By an enduring power of attorney, an adult (principal) may ... authorise 1 or more other persons who are eligible attorneys (attorneys) to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney if the adult had capacity for the matter when the power is exercised". [62].

The first question was whether the execution of a BDBN in a superannuation context is a "financial matter", authority for which may be delegated to an attorney. [66]. Her Honour considered the definitions of "financial matter" and "legal matter" under the Act. [67]-[68]. Although the execution of a BDBN did not fall within any of the given examples, her Honour noted that the examples are not exhaustive and held that given the breadth of the word "financial", such an act did fall within the meaning of the term. [69].

The next question was whether there is any reason, arising from the Act or as a matter of general law, to conclude that the execution of a BDBN is an act which must be performed personally. [70]. Her Honour noted that the act is not a testamentary act, and that there is no contractual restriction in the Fund deed. [71]-[72]. Her Honour noted that the ALRC's report in relation to "Elder Abuse" articulated a policy position that an attorney under an enduring power of attorney, by virtue of that power alone, should not be able to make a BDBN for a member of a superannuation fund. [73]-[74]. Importantly, the report acknowledged the distinction between the making of a BDBN, and the confirming of a previous BDBN. [74].

Her Honour noted that in the context of potential for abuse in this context, the Act contained a number of protective features. [75]. In particular, s 73 of the Act contains a requirement to avoid a "conflict transaction". [76]. The potential for conflict existed because Mrs Giles, her son and Mrs Keenan were beneficiaries under the various BDBNs. Nonetheless, her Honour held that the extension BDBN was not a conflict transaction for various reasons, including that the reason for executing it was to ensure continuity in Mr Giles' estate planning and ensure that his wishes in respect of the distribution of the benefits continued to have effect. [79]-[87]. Her Honour also recorded that she was satisfied that the extension BDBN complied with the relevant clauses of the Fund deed. [88].

In relation to the 2016 BDBN, her Honour noted that it represented a change to what Mr Giles had proposed. [89]. Her Honour noted that "[w]here an attorney purports to make a [BDBN] for a principal/member, who has lost capacity, for the first time ... or purports to amend or vary a [BDBN] previously made personally by the member, different considerations, in particular in terms of actual or potential conflicts of interest, may arise". [89]. Her Honour ultimately adopted a conservative approach to the issue, and refused to make the declaration sought in relation to the 2016 BDBN as "it could be said, in light of the change, that it is a conflict transaction for which there was no authorisation from the principal". [91].

M J Hafeez-Baig