The case of Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 involved an appeal by the mother of a deceased against the decision of the Australian Financial Complaints Authority (AFCA) to uphold a BDBN to benefit the de facto spouse of her late son, which was to be funded out of life insurance proceeds in AMP Superannuation.

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, at paragraph 7 of the Judgment: - 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”.

The crucial piece of evidence was a Whatsapp SMS from the member to his sister that the de facto had put the deceased in a position where he had had enough and wanted the de facto to not receive any of his assets or attend his funeral.

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.

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.

Not all superannuation trust deeds expressly terminate a BDBN upon termination of a spousal relationship. 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.

Phil Broderick
Principal
T +61 3 9611 0163 l M +61 419 512 801
E pbroderick@sladen.com.au

Terence Wong
Senior Associate
T +61 3 9611 0112 l M +61 0458 846 022
E twong@sladen.com.au