Adversarial Relationship

The relationship between a Trustee of a regulated superannuation fund and a beneficiary should not be an adversarial relationship. The Trustee has a statutory duty to act in the best interests of the members and beneficiaries {s 52 of the Superannuation Industry (Supervision) Act 1993}.<.p>

If it is the conduct of the trustee or trustees that results in an adversarial relationship developing this can be justification for the Court to remove the trustee from office {Wendt v Orr [2004] WASC 28 at [255]; Longworth v Allen [2005] SASC 469 at {72-74}}

If a question arises as to the construction of the terms of the superannuation scheme then the onus is on the trustee to seek advice and directions from the Court and the onus is not on the members and beneficiaries as confirmed by the High Court of Australia.

The cost of seeking such advice and directions is taken from the Trust Estate (Fund), so a trustee has no excuse not to seek such advice so as to act in the best interests of the member and beneficiaries while not acting in Breach of Trust.

By taking advice and directions, the trustee is also protected from a personal liability for Breach of Trust {Section 56 of the Trustee Act 1936 (SA)}.

The onus of proof does not rest with a beneficiary of a regulated superannuation fund to confirm an entitlement to a benefit the onus of proof rests with the trustee to establish that that the claimant is misconceived as to their right to the entitlement under the terms of the scheme as properly construed.