Frequently Asked Questions (FAQs) - Smarter Legal Review

The is article outlines a range of frequently asked questions (FAQs) in respect to utilising Smarter Legal Review:

What is the Smarter Legal Review Service?

Smarter SMSF, in conjunction with its legal partner, Hill Legal, provide the Smarter Legal Review (SLR) service to support members of other PAYG users on the Smarter SMSF platform to obtain legal support in respect to a range of documents available on the platform, and in respect to remedying defective documents.  

The SLR provides legal support for practitioners who have identified issues or defects in any SMSF documents that require rectification.

What is the purpose of a Legal Review?

A Legal Review is primarily used to either:-

1. Rectify an existing issue in a Deed to ensure it complies with current superannuation legislation with a level 3 review; or
2. Provide a Certificate of Legal Review.

However, if you have a complex superannuation matter that needs to be reviewed, you can also apply for a bespoke review, which is a customised review to meet your superannuation needs.

When would I need to ‘rectify’ a superannuation document?

Generally, we recommend amending errors:-

1. where incorrect signing dates are listed, or any amendments to the deed are not mentioned in the schedule;
2. where the wrong entity, ACN or ABN (especially an SMSF trust deed) has been used; and
3. where the property address for the property is listed incorrectly.

Below are some examples of issues you can encounter if you do not rectify superannuation documents:

• A Bare Trust Deed has the wrong property address, and the bank will not approve a property transfer without the property address being changed;
• A Deed of Variation is not referenced properly, and the wrong version of a trust deed is used to make a decision, which is later determined to be non-compliant with superannuation laws or invalid;
• The wrong party gains legal title.

To amend all of these issues, we can provide a deed of rectification or other deeds as required.

What is a Certificate of Legal Review and how is it useful?

A Certificate of Legal Review will be tailored to your needs.

You can show this certificate to others as confirmation by SMSF trustees and advisers that specialist superannuation lawyers have reviewed your superannuation documents.

We envision that it will be best utilised by:

• SMSF Trustees or advisers who want to confirm if a deed chain or binding death nomination is free from defect;
• SMSF Trustees or advisers who have identified some concerns with documents but are not sure if any steps need to be taken and want a review to determine if any works needs to be done;
• SMSF Trustees or advisers who require LRBA or loan documents to be reviewed by SMSF specialists;
• SMSF Trustees or advisers who need assistance with a deed upgrade;

We would recommend seeking a certificate from Hill Legal (using the Smarter Legal Review) if you are concerned about any of the above issues.

In worst-case scenarios, small defects in documents end up being challenged in court or result in penalties being issued by the ATO.

What can the Review not do?

A Certificate of Legal Review will not resolve a document's defects or existing legal issues.

Aside from checking a deed for some basic errors (When a document is properly signed and dated and whether the name of the parties are correct), we will only review the document according to your instructions, and a compliance certificate will be scoped accordingly.

What is the cost?

The cost for any review or rectification is outlined on our service table.

View service table

However, we will note that some complex or extensive reviews or legal matters will require a greater scope of work than covered by Level 1, 2 or 3 in our service table. These matters are known as bespoke reviews (level 4) and will require special legal consideration and Hill legal will prepare a quote for each matter in this category on a case-by-case basis.

How do I request Legal Review?

To request legal review, you will need to complete a client intake form. This can be completed on the Smarter SMSF platform.

What are the types of reviews that you offer?

We offer four types of reviews: Level 1, Level 2, Level 3 and Bespoke.

• Level 1 reviews consider a single pre-existing document and compare it with a Smarter SMSF document. This may be useful to check the validity of a deed chain or the validity of a related SMSF document, such as the validity of a binding death benefit nomination.  
• Level 2 reviews consider up to three pre-existing documents and compare them with a created Smarter SMSF document. This review could be used to check a large deed chain or multiple documents to see if they are valid to the terms of the SMSF trust deed or superannuation law.
• Level 3 reviews are mainly for deeds of rectification. This review is best when you have a SMSF Trust Deed or Deed of Variation which, due to a clerical error, is incorrect and may not be valid. For example, the name of the corporate trustee may not be spelt properly on the SMSF trust deed.
• Level 4 covers some more complex amendments or reviews that fall outside the above scope and require a bespoke review.  You will work with Hill Legal as to the scope and fees for the work to be undertaken.,

What happens if you pick the wrong type of review?

If you have completed a request for legal review in a Smarter SMSF form and picked the wrong type of review, Hill Legal will notify you of this as part of the scoping of work and will ask if you would like to change the scope of work to be completed.

If this happens, the difference between the cost of the review ordered and cost estimate will need to be paid directly to Hill Legal for the work to proceed.

For example, if you ordered a level 1 review and subsequently it was identified that a level 2 review was needed, the difference in price between a level 1 and level 2 review would be payable directly to Hill Legal to complete this work - Smarter SMSF will resolve the initial Level 1 payment with Hill Legal.