The cases referred to in Julie's article highlight the importance of proper estate planning both at the adviser level and when implementing an estate plan. It's interesting to note that in the Munro v Munro case even Mr Munro who was a solicitor got it wrong!
Without knowing Mr Munro's background it's difficult to say what experience he had in estate planning but perhaps one lesson to take is that not all solicitors have the necessary level of expertise in estate planning - especially ones who work in other jurisdictions.
You and your clients need certainty that you are receiving the correct estate planning advice and this comes from using experienced practitioners in the field. Estate planning needs to extend to a complete knowledge of superannuation, estate administration (at a practical level) and any tax implications arising from these areas.
In summary, the issues which should have been addressed in each case are outlined below.
Control - A lack of understanding of control issues within the super fund. It is one thing to appoint executors who you want to manage or control your estate, but this is useless if the funds are never transferred into the estate.
Control - Control of the SMSF was not given to the appropriate people although the required result was achieved in the end, with the children receiving the death benefit.
Control and incorrect wording in the SMSF binding death benefit nomination.
Arguably there was a lack of understanding or thought process behind who should have been appointed as administrator. This could have been avoided if a trustee company was appointed to act as an independent trustee.
If for instance we were appointed as trustee, there is no doubt that our responsibility would be to not only maximise the estate's value but to give consideration to any decision made by the super fund trustees. We are often required to object to or agree to a super fund trustee's decision and if necessary attend a conciliation conference initiated by the Superannuation Complaints Tribunal.
The super fund trustees do not always get it right and this has been shown on several occasions when decisions were changed after representations by us. The upshot of all of this is that the appointment of an appropriate executor does provide independence and will solve self-serving interests, such as those shown in the McIntosh case.
Professional estate planning advice is paramount to ensure that your client's estate is controlled as per their wishes when they pass away. By following the above steps, both you and your clients can be confident that what is intended will actually take place.