By Krishna Skandakumar ([email protected]),
Lawyer, DBA Lawyers
Often self managed superannuation funds ('SMSFs') are
created with the best of intentions, whether to provide for a
second spouse, create a contingency for a child, entering property
ventures with a business partner, etc. But the most important
question — which is almost always overlooked — is what
happens if it all goes wrong?
This article examines the ability of an SMSF trustee to forcibly
remove a member. However, it starts by asking a preliminary
question: what happens when trustees cannot agree?
Do trustees have to act unanimously?
Strictly speaking, trustees must act unanimously. Or, to phrase
this another way, if trustees cannot agree, no valid decision can
be made. This is a well-established principle of trust law famously
stated in the case of Dawson v Dawson [1945] VLR 99 as
follows:
