It is common for superannuation trustees to seek to amend the
governing rules of a superannuation fund. This regularly occurs
during fund and product rationalisation activity, successor fund
transfers, and new product launches.
The typical formula for assessing whether a trust deed amendment
can be made by the trustee will involve:
- examining the amendment power contained in the trust deed;
and
- ensuring the amendment is consistent with the sole purpose test
in accordance with section 62 of the SIS Act, and does not
adversely alter any accrued benefits in accordance with SIS
Regulation 13.16.
However, there is an additional critical factor in the legal
equation that is often overlooked as an intrinsic limitation on the
amendment power – preserving the substratum of the trust.
Failure to adhere to the substratum rule could result in an
unenforceable amendment being made or a resettlement of trust.
