A man’s suicide note stating he wanted all assets to pass to his family and not his partner does not override an earlier death benefit nomination, a court has ruled. 

Pino Corbisiero made the non-lapsing nomination with NM Superannuation in late 2018, leaving all his life insurance death benefit – more than $1 million – to de facto partner James Nguyen. 

But shortly before taking his own life in September the following year, he sent a text to his sister detailing his “will and testament” and stating he wanted to “leave all my property and assets to my family to my brother and sister and my nieces and nephew only and no one else. James receives nothing of my assets.” 

Mr Corbisiero’s super trustees decided the text showed the de facto relationship was over and declined to pay Mr Nguyen. 

It was the first in a series of contrasting decisions regarding the status of the couple’s relationship – a crucial issue, given the non-lapsing nomination’s rules dictated it became invalid upon “termination” of a marriage or de facto partnership. 

Mr Nguyen took the super fund’s decision to the Australian Financial Complaints Authority, which decided in his favour and awarded him the entire benefit, finding that despite Mr Corbisiero “venting” to family about Mr Nguyen and telling a former lover he wanted to leave the relationship, the “evidence does not support [that Mr Corbisiero] had actually taken steps to end his relationship with [Mr Nguyen] prior to his death”. 

It added: “Although the [AFCA] panel acknowledged [Mr Corbisiero]’s message to his sister just prior to his death, it did not consider this terminated the relationship between him and [Mr Nguyen]. This is because relationships have their ups and downs and, while there may have been some disagreement just prior to [Mr Corbisiero]’s death, the panel did not consider the relationship had been terminated.” 

Mr Corbisiero’s mother then challenged this in the Federal Court, which last November set aside the AFCA decision, stating Mr Corbisiero “made an unequivocal statement of his intention to terminate his de facto relationship with Mr Nguyen. To say, as AFCA did, that the text instead conveyed that ‘relationships have their ups and downs’ and Mr Corbisiero ‘may have had misgivings and vented his frustrations’ and ‘indicated to another party he wanted to leave the relationship’ seems to me, with respect, to be an untenable reading of the text, and it was not reasonably open to AFCA to find as it did.” 

Mr Nguyen appealed against this decision, and a panel of three Federal Court judges this month ruled in his favour. They noted the payout rules required the relationship to be over before – not because of – the policyholder’s death. 

“I respectfully agree with the learned primary judge’s conclusion that ‘it is not necessary for a party to a de facto relationship to communicate their intention to the other party in order to terminate it’,” Justice John Snaden said. “However, where there is no such communication, there must, I think, be some other conduct that is apt to stand as a practical manifestation of the intention so formed. 

“A person who tells a third party of his or her intention to end a de facto relationship should not be understood, merely by that communication, to have done so. In my view, termination requires some other conduct inconsistent with the continuation of the relationship – for example, desertion ... unilateral relocation with children ... refusal to cohabitate ... or refusal to communicate otherwise than in writing.” 

The court found it “was open to AFCA to conclude that, the text message notwithstanding, Mr Corbisiero had not actually taken steps to end his relationship ... prior to his death”. 

See the full ruling here.