SMSF adviser logo
subscribe to our newsletter

BDBN court ruling highlights relationship status can be open to interpretation

terence wong sladen legal smsfa mazd10
By Keeli Cambourne
13 February 2024 — 3 minute read

A recent court ruling has highlighted that not all superannuation trust deeds expressly terminate a BDBN when a spousal relationship ends, says a legal expert.

Terence Wong, a superannuation law specialist with Sladen Legal said the case of Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 is a reminder for trustees and advisers to carefully read superannuation trust deeds.

“This case reminds us to read the superannuation trust deed for the provision or obtain advice tailored to the member’s needs, objectives and circumstances, and to amend the superannuation trust deed or place a condition on the BDBN where required,” he said.

The Corbisieri case involved an appeal by the mother of a deceased, and executrix of his estate, against the decision of the AFCA to uphold a BDBN to benefit the de facto spouse of her late son which determined that the entire death benefit of $1.122million be paid to the de facto partner, to be funded out of life insurance proceeds in AMP Superannuation.

Mrs Corbisieri (the mother) contended that immediately before his death by suicide on 1 September 2019, her son expressed his intention to terminate his de facto relationship with Mr Nguyen in a message he sent to his sister via WhatsApp.

The message said it was the deceased's "will and testament" from the date it was sent, and stated that the deceased wanted to leave all his property and assets to his family, that the de facto partner was to receive "nothing of my assets all for he has put me in the position or stage of my life where I had enough".

The mother claimed that therefore the Non‑Lapsing Binding Nomination was invalid at the time of his death per the relevant fund rules.

“The AMP Superannuation Savings Trust Consolidated Trust Deed included a rule that a BDBN would be invalid if it is made out to benefit the member’s spouse and that spousal relationship terminates,” Mr Wong said.

“In paragraph 7 of the judgment it states: ‘Rule 7.10D(d) in turn provides that [a] Non-Lapsing Nomination ceases to be valid and effective upon ‘the date … the member’s de-facto relationship (including with a person of the same sex) terminates’.”

On appeal, counsel for Mrs Corbisieri accepted that Mr Corbisiero was in a de facto relationship with Mr Nguyen until shortly before his death.

On 6 December 2018, Mr Corbisiero completed a Beneficiary Nomination Form in which he nominated Mr Nguyen in his Non-Lapsing Binding Nomination as “partner”.

At the hearing, counsel for both Mrs Corbisieri and Mr Nguyen agreed that although multiple grounds of appeal were contained in the notice of appeal, the appeal turned on one question only, namely, whether the communication of the text by Mr Corbisiero to his sister shortly before his death was effective to terminate the de facto relationship.

The ruling stated that if the answer to that question is yes, then the matter must be remitted to AFCA “to be determined again” according to law, according to s 1057(4)(b) of the Corporations Act.

“AFCA found that it would be unfair to consider the relationship had ended as relationships have their ups and downs and AFCA therefore upheld the BDBN,” Mr Wong said.

The court ruling said the AFCA panel found the BDBN was valid as it was satisfied the spousal relationship between the deceased and the complainant was ongoing and had not terminated at the date of the deceased’s death.

“However, the Federal Court found that the deceased stated his intention in the SMS that the relationship was terminated and he acted on that and this proved to be sufficient evidence that the de facto relationship was terminated upon the deceased’s death and that the BDBN in favour of his (former) de facto was invalid.”

The judgement stated that Rule 7.10B of the trust deed explains that, where the trustee receives a BN and it satisfies the required terms and conditions, the trustee’s consent becomes effective from the time the nomination is processed by or on behalf of the trustee.

“While the deceased had died before he received his annual statement for the July 2018 to 30 June 2019 year, the panel noted it listed the complainant as the person nominated in the BN,” it stated.

“The panel was satisfied the trustee had consented to the BN in the relevant sense and that it met the required terms and conditions. The trustee in its submissions says the BN was not valid because the spousal relationship was no longer in existence at the date of death.”

The matter remitted to AFCA is to be redetermined per the court's reasons.

You need to be a member to post comments. Become a member for free today!


Get the latest news and opinions delivered to your inbox each morning