Grotesquely unreasonable and SMSF trustees paying death benefits: Re Marsella

28 February 2019

By Daniel Butler, Director, and Kimberley Noah, Lawyer, DBA Lawyers

The decision in Re Marsella [2019] VSC 65 (‘Re Marsella’) highlights the importance of trustees of self managed superannuation funds (‘SMSFs’) exercising their discretion to pay death benefits in good faith, with real and genuine consideration and in accordance with the purpose for which their power was conferred.

This case is a wonderful read and has a great depth of legal analysis of the high legal standards that SMSF trustees are held accountable to. This case also highlights the need for careful attention to SMSF succession planning.


The Swanston Superannuation Fund (‘Fund’) was established by deed on 12 May 2003 (‘Deed’) with Helen Marsella (‘Deceased’) and her daughter from her previous marriage, Caroline Wareham (‘Caroline’) as individual trustees. The Deceased was the sole member and founder of the Fund until her death on 27 April 2016 and her Fund balance was then an estimated $450,416.

The Deceased was also survived by her husband of 32 years, Riccardo Marsella (‘Riccardo’).

Clause 8.5 of the Fund’s Deed provided the founder with the power to appoint and remove any person as an individual trustee, conditional on the approval of a members’ resolution. This clause also provided that an individual ceases to hold the office of trustee upon death.

The dispute

In response to the exercise of discretion and payment of death benefits in favour of Caroline, Riccardo, both in his personal capacity and as executor of the Deceased’s estate, sought the removal of Caroline and her husband Martin Wareham (‘Martin’) as trustees. As discussed later, Riccardo was successful in this regard. Additionally, Riccardo sought the appointment of a new trustee and the repayment of the death benefit plus interest to the Fund.

Riccardo submitted that the trustees did not exercise good faith and real and genuine consideration in relation to the dependants of the Deceased and submitted that the death benefit payment should be set aside.

The trustees submitted that the Deed afforded them with an absolute and unfettered discretion to make the payment to Caroline, arguing that they were not required to provide reasons for their decision. Further, the trustees submitted that under the Deed, the trustees had a general power of appointment, which was tantamount to ownership, and for that reason, Caroline could distribute the entire Fund balance to herself.

Questions for the Court

The key questions for the Court were:

  • whether Caroline and Martin properly exercised their discretion when paying the Deceased’s death benefit. Specifically, the Court considered whether the trustees acted in good faith, with real and genuine consideration and in accordance with the purposes for which the power was conferred; and
  • whether Caroline and Martin should be removed as trustees and the appointment of a new trustee.


McMillan J held that Caroline and Martin in their capacity as trustees failed to exercise their discretion with a real and genuine consideration of the interests of the Fund’s beneficiaries.

In particular, the Court singled out Caroline’s behaviour for criticism, stating at [56] that her arbitrary distribution of benefits in the Fund to herself was carried out with ‘…ignorance of, or insolence toward, her duties.’ McMillan J at [57] also stated that her conduct was beyond ‘mere carelessness’ or ‘honest blundering’. Consequently, McMillan J held that Caroline and Martin were to be removed as trustees commenting at [79]:

In the context of an improper exercise of discretion, and significant personal acrimony between the first defendant and plaintiff, the defendants are to be removed as trustees of the fund.

Subsequently, McMillan J held that Riccardo was to file further submissions for the appointment of a trustee to ensure the Fund meets the definition of a complying superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth).

Key lessons

Many implications arise from the decision of Re Marsella.

Lesson 1 — Trustees must exercise their discretion with good faith, etc

This case highlights the importance of good faith, etc, in regard to the exercise of a trustee’s discretion in relation to paying death benefits.

In April 2017, the Fund’s accountant Mr Hayes received two sets of trustee minutes of meetings and resolutions, both dated 17 April 2017 prepared by the trustees’ lawyers.

The court closely examined the documents and communications prepared by the trustees’ lawyers.

These communications counted against Caroline on the question of good faith, as the court found that correspondence provided to Riccardo via her lawyers evidenced a ‘dismissive tenor’ and was approached with ‘…misapprehensions as to the terms of the fund deed…’

The first set of trustee minutes dated 17 April 2017 named Caroline as the sole surviving trustee and resolved that the trustee exercise its discretion to pay her the entire balance in the Fund. These minutes also indicated that due consideration had been afforded to the interests of all of the dependants and to any beneficiaries of the Deceased including her legal personal representative (ie, the executor of her estate).

Interestingly, a second set of trustee minutes was also made on 17 April 2017 noting that clause 8.1 of the Deed required the office of trustee be held by two or more individual trustees and noted that the appointment power could not be exercised as the Fund had no members and accordingly, a member resolution could not be made to appoint another trustee. The second minutes indicated that Caroline could however appoint a co-trustee by reliance on s 41(1)(b) of the Trustee Act 1958 (Vic) (which broadly applies if there is otherwise no other person willing or able to act as trustee). Relying on s 41(1)(b), Caroline appointed Martin as co-trustee to satisfy the requirement in the Deed to have a minimum number of at least two trustees.

Moreover, the second set of minutes also provided that together, Caroline and Martin resolved to distribute all of the Deceased’s balance in the Fund to Caroline. These minutes also used similar language to the first set of minutes indicating that due consideration had been given prior to the resolution to pay the whole of Fund’s balance to Caroline.

The court was suspicious that there were two sets of trustee minutes on the same day (both dated 17 April 2017) and especially that Martin had only been appointed on that same day as a co-trustee resolved to approve the payment to Caroline.

McMillan J noted Karger v Paul [1984] VR 161 at [164], holding that the discretion must be exercised in ‘good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred’. Generally the Courts will not look at the outcome itself, but where the result is, in the words of McMillan J at [51] ‘grotesquely unreasonable’, this may form evidence that the discretion was not properly exercised or was mala fides.

Further, McMillan J reiterated the approach quoted by the High Court in Attorney-General v Breckler (1999) 197 CLR 87 at [99]-[100]:

‘[w]here a trustee exercises a discretion, it may be impugned on a number of different bases such as that it was exercised in bad faith, arbitrarily, capriciously, wantonly, irresponsibly, mischievously or irrelevantly to any sensible expectation of the settlor, or without giving a real or genuine consideration to the exercise of the discretion. The exercise of a discretion by trustees cannot of course be impugned upon the basis that their decision was unfair or unreasonable or unwise. Where a discretion is expressed to be absolute it may be that bad faith needs to be shown.’

Accordingly, McMillan J held that the question of whether a trustee acted in good faith, with a real and genuine consideration will turn upon the considerations and inquiries the trustee made, their reasons for, and manner of exercising their discretion.

Indeed, all trustees must inform themselves before making a decision to ensure the discretion is exercised with a real and genuine consideration for the purpose for which the discretion was conferred. As a corollary of this principle, trustee must not take irrelevant considerations into account and must not fail to take relevant considerations into account. In this case, the court noted at [52] that Caroline’s purported good faith was impugned by her ‘…ignoring the plaintiff’s substantial relationship with the deceased and relatively limited financial circumstances…’ which were relevant considerations.

Accordingly, advisers must remember that although a trust deed may, among other things, afford a trustee with absolute discretion, the discretion must still be exercised in good faith and with due regard to relevant considerations.

Lesson 2 — Trustees must exercise their powers in accordance with the purpose for which the power was conferred

Trustees must also carefully exercise trust powers in accordance with the purpose for which these powers were conferred. This is a question of fact that is decided having regard to the overall circumstances and evidence, as McMillan J held at [40]:

Whether a trustee exercised a power for a proper purpose is a question of fact to be decided on the evidence. A trustee is not bound to disclose her or his reasons in reaching a particular decision, and a negative inference cannot be drawn from the non-disclosure by a trustee of the reasons for his or her decision.

In this case, McMillan J held that additional evidence would be required to demonstrate that Caroline and Martin had exercised their discretionary power for an improper purpose, as Caroline fell within a designated class of beneficiaries that are the subject of the power under the terms of the Deed.

Lesson 3 — Trustees must not act in conflict of their duty

This case considers a number of issues relating to conflict, particularly where personal conflicts and relationship breakdowns arise that preclude trustees from exercising their duties impartially and as part of the proper administration of the trust. The court found that significant personal acrimony existed between Caroline and Riccardo that impacted her ability to discharge her duties as trustee and that the Deceased did not foresee and consent to such a conflict merely by virtue of appointing Caroline as a co-trustee at the inception of the Fund.

In this case, the trustees’ lawyers sought to deny that a conflict had arisen, however McMillan J rather characterised this downplaying of the conflict as ‘ignorance or deliberate mischaracterisation of the true circumstances at hand’ at [50], holding that a substantial conflict did, in fact, exist between Caroline and Riccardo.

Moreover, McMillan J held that the overarching obligations of trustees applied to the exercise of discretion in relation to death benefits. Relevantly, McMillan J held at [47]:

The fact that [Caroline] falls within the class of objects did not negate her duty to exercise the power in good faith, upon real and genuine consideration, and for the purposes for which the power was conferred.

This aspect of the case is significant as it illustrates how easily conflicts can arise in an SMSF context. ATO data indicates that approximately 70% of funds are two member funds, and these are likely to predominantly involve married couples and upon the death of the first spouse, it is very likely that the surviving spouse may be placed in a position of potential conflict in relation to their trustee role. If these foreseeable conflicts are not appropriately managed, many SMSFs that become managed by the surviving spouse following the death of their spouse could stray into breaching their fiduciary duties.

Lesson 4 — Importance of seeking advice

This decision demonstrates the importance of seeking independent, specialist legal advice where there is any uncertainty.

McMillan J noted in Re Marsella that the Fund failed to obtain specialist legal advice, even though this was recommended by the Fund’s accountant and notwithstanding that the trustees had obtained certain legal advice. McMillan J specifically noted at [55] that Caroline ‘did not seek to resolve uncertainty surrounding the fund deed, in the context of a significant financial decision…’ and that specialist legal advice was particularly important given the complexities and size of the Fund.

Accordingly, where there is any doubt whatsoever regarding a fund’s document trail or related matters, including how a trustee should exercise its discretion, these critical points must be addressed before a trustee is in a position to properly exercise its discretion. Therefore, advisers and SMSF trustees should seek independent specialist legal advice as soon as possible to properly address these matters.

(Naturally, DBA Lawyers, as well as being recognised as the leading SMSF law firm in Australia, offers independent expert legal advice. Our advice is also subject to legal professional privilege.)

Lesson 5 — Planning for control after death

This case highlights the importance of sound succession planning. Indeed, the succession to control of an SMSF is critical to ensure a fund is properly managed on the loss of capacity or death of a member. Unless the fund is placed in trusted hands, particularly where there are second or subsequent spouses, the member’s wishes and intentions may be ignored. There have been numerous death benefit disputes involving SMSFs where the second spouse has taken control of the SMSF for their own benefit on the death of their spouse. In contrast, this case involved the surviving trustee, being the Deceased’s daughter, seeking to take control of the fund to the detriment of the second spouse.

We note that with appropriate succession planning and quality documentation (including, among other things, a BDBN or death payment deed) may have overcome the issues in this case.

DBA Lawyers believes there are very few SMSF deeds that appropriately and adequately deal with succession and what happens on loss of capacity or death. Indeed, if an SMSF deed is not appropriate the trustee should urgently consider updating to a quality deed.


There are limited grounds to review a trustee’s exercise of discretion and the courts are reluctant to interfere with the exercise of discretionary powers unless there is clear evidence. This case demonstrates that the courts are willing to set aside trustee decisions and remove trustees where they have failed to act in good faith and fail to comply with their trustee duties.

In light of this decision, SMSF trustees should consider reviewing their current SMSF succession planning to ensure there are appropriate arrangements and documents in place and seek expert legal advice wherever needed.

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This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.