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SMSF and Superannuation Dispute Lawyers in Melbourne
For trustees, members, families and estates in dispute over a self-managed superannuation fund. Death benefit disputes, trustee deadlock, breach of trustee duties, and funds caught up in a separation or a business breakup. If the argument is inside your own fund, there is no ombudsman for it.
Where this page starts and stops
We act on disputes and exposures inside a superannuation fund, and on death benefit disputes. Typically that means self-managed funds, where the members are also the trustees, and where a disagreement has nowhere external to go.
That is a deliberately narrow focus. We do not run retail superannuation enquiries, insurance or disability claims made through a fund, or early release applications. If you need to consolidate accounts or work out the tax on a withdrawal, your fund or your accountant will do it faster and for nothing.
What we do handle is what happens when the fund itself becomes the battleground: after a death, after a separation, after a business partnership ends, or after one trustee has been running things alone for rather too long.
Who receives it, and who decides.
Deadlock, exclusion, and removal.
Recovering loss from a co-trustee.
The fund when the couple are the trustees.
When the fund is in trouble.
Business premises and related-party assets.
Your will does not control your superannuation
This is the single most common and most expensive misunderstanding in this area, and it costs families a great deal.
Your superannuation is not part of your estate. It is held on trust, and on your death it is paid by the trustee of the fund. A will directs your estate. It does not direct your super. Under section 59(1A) of the Superannuation Industry (Supervision) Act 1993, the governing rules of a fund may let a member give the trustee a notice requiring the benefit to be paid, but only to the legal personal representative or to a dependant or dependants of the member. Where there is no valid and effective notice, the trustee exercises a discretion.
Now add the feature that defines a self-managed fund. Under section 17A, an SMSF has no more than six members, and every member must be a trustee while every trustee must be a member. There is no independent professional trustee sitting above the argument.
In a self-managed fund, the person who decides where your super goes is the person who outlives you.
In the common two-member fund, when one member dies the survivor controls the trustee, and therefore controls the discretion over the deceased member's benefit. In a second marriage, or where adult children from an earlier relationship expect to receive something, that means the money is allocated by the very person they are in dispute with. The deed, the nomination and the trustee succession provisions decide these cases, and they are usually looked at for the first time after the death.
The other half of the problem is that there is nowhere to complain. AFCA handles disputes with large regulated funds, but its own guidance places complaints about self-managed funds outside its superannuation jurisdiction. A dispute between the members of an SMSF is not a complaint against a financial firm. There is no free external route: it is negotiated, or it is litigated.
The benefit is not in the estate
Super is paid by the trustee, not under the will. A binding nomination, where the deed permits one and it is validly made, is what directs the payment. Otherwise the trustee chooses.
Only certain people can receive it
Section 59(1A) limits a nomination to the legal personal representative or a dependant. "Dependant" is defined in section 10 and includes a spouse, any child, and anyone in an interdependency relationship under section 10A.
The decision-maker is a party
Section 17A means the members are the trustees. After a death the survivor usually controls the fund, so the person exercising the discretion is rarely neutral.
Read the deed first
Read the deed, then the paperwork
Almost every SMSF dispute is decided by documents that already exist: the trust deed and its amendment history, the trustee appointment and succession clauses, any death benefit nomination, and the fund's minutes. Chains of amendments are frequently defective, and a defective amendment can decide the whole matter.
Work out who actually controls the fund
Who is a trustee now, how a new trustee can be appointed or removed under the deed, and what the deceased member's legal personal representative can and cannot do. Control is usually the real fight, because whoever holds it exercises the discretion.
Resolve it, or take it to court
With no ombudsman available, SMSF disputes settle through negotiation or mediation, or they are decided in court. Both work better when the deed analysis is done first, and when the fund's compliance position is understood before anyone writes to the ATO.
Three disputes we see
SMSF disputes tend to arrive in one of three shapes. All three are about control of the fund, whatever they appear to be about on the surface.
After a death
The surviving trustee allocates the benefit, and the deceased member's children or estate disagree. The questions are whether a nomination was valid and binding, who the dependants are, and whether the trustee's discretion was exercised properly.
Will disputesAfter a separation
Two spouses are the only members and the only trustees, and neither will cooperate. The fund still has to be administered and its compliance obligations still run, while the splitting itself is dealt with in the family law property settlement.
Property settlementAfter a business breakup
The fund holds the premises the business trades from, or an asset acquired with a partner. When the commercial relationship ends, the fund is entangled in it.
Business lawBring the deed
Most of what determines an SMSF dispute is in the trust deed and the fund's records. Send them across and an early conference will usually tell you where you stand.
Book a consultationWhy SMSF disputes end up in court
If you have a complaint about a large regulated fund, AFCA is free, informal and effective. Self-managed funds are treated differently. AFCA's own guidance states that complaints about self-managed superannuation funds are not classed as superannuation complaints, and are considered instead under its investments and advice jurisdiction, which deals with complaints against financial firms. A dispute between the trustees and members of an SMSF is not a complaint against a financial firm, so that route does not assist either.
The practical consequence is that an SMSF dispute has no free external decision-maker. It is resolved by agreement, or by a court. That is also why these disputes tend to be more expensive than people expect, and why the early analysis matters: there is no cheap backstop to fall into if negotiation fails.
And how loss is recovered
Section 52B of the SIS Act deems a set of covenants into the governing rules of every self-managed fund, whether or not the deed contains them. Each trustee covenants to act honestly in all matters; to exercise the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with the property of another for whom the person felt morally bound to provide; to perform their duties and exercise their powers in the best financial interests of the beneficiaries; to keep the fund's money and assets separate from their own; not to fetter their powers; and to formulate, review regularly and give effect to an investment strategy.
Those covenants must not be contravened (section 54C), and where a contravention causes loss, section 55(3) allows the person who suffered it to recover against the contravener or against any person involved in the contravention, generally within six years (section 55(4)). Note also that the regulator for a self-managed fund is the Commissioner of Taxation rather than APRA.
Trusted on the matters that mattered most
Absolutely brilliant firm! Sarah was handling our matter and was incredibly thorough, communicative and clear from start to finish. Pentana Stanton really stood out as integral and competent with getting my matter resolved.
Highly professional, compassionate staff with a high level of knowledge and competence. Reliable, reassuring and there when you need them. Highly recommend.
From the moment I contacted Pentana Stanton Lawyers, I was under significant stress and needed clarity about my case. Their prompt and professional response stood out immediately, especially compared to other firms I had reached out to.
Questions trustees and families ask first
Last reviewed August 2026. Statutory references are current to the Superannuation Industry (Supervision) Act 1993 (Cth) Compilation No. 130, compilation date 1 July 2026. This page is general information, not legal advice.
Send us the deed.
If a self-managed fund is in dispute, the fastest way to find out where you stand is to have the deed and the fund's records looked at properly. Arrange a consultation and we will tell you who controls the fund and what your realistic options are.
See also: Will Disputes, Estate Planning, High Net Worth Property Settlement, Commercial Litigation.