Case

Which case won?

casea
The case for the trustee
  • At the time the deceased signed the BDBN, he lacked mental capacity to enter that transaction.
  • The decision to enter into a BDBN is a complex one. The deceased’s ability to comprehend material of significant complexity was impaired when he signed the BDBN.
  • When the deceased gave his lawyer instructions to prepare the BDBN, the lawyer was so concerned that she made a file note of their conversation, noting of the deceased that he “Sounds confused. Medication?... Concerned re capacity --> sounded drugged up.”
  • On the day that the deceased signed the BDBN, he had been transferred to the ICU because he was so ill, and he had been given doses of morphine and lorazepam. As the medical expert testified: “…the hospital records suggest that [the patient] was drowsy… and a person who is affected by morphine and lorazepam to the extent they are drowsy will also experience effects of difficulty concentrating and impaired comprehension, particularly in matters of some complexity.”
  • This last-minute change by the deceased went against his carefully considered estate plans, which he had previously discussed in detail with his lawyer. He had been clear that he wanted his death benefit paid to his estate, so his executors could discharge liabilities using those funds. He had also expressed concerns that his spouse was not a good saver, that she would not be able to manage assets on her own, that she might re-partner in the future and that the assets he had accumulated for the benefit of his children would not be protected if there was an outright gift or sole control given to her.
  • The court must find that the deceased lacked mental capacity to sign the BDBN and so it is void and unenforceable.
caseb
The case for the spouse
  • At the time my spouse signed the BDBN, he had mental capacity to enter that transaction.
  • A BDBN is not a particularly complicated document, and my spouse was absolutely capable of comprehending it at the time he signed it. He was a highly intelligent man with a general medical practice for many years and degrees in medicine, economics and law, as well as a masters degree in business administration. Even during the final days before he died, he was able to have detailed conversations with his doctors about his medical condition and his professional life.
  • My partner also signed his will only days before he died, at a time when his morphine dosage was at its peak, and no one is disputing his testamentary capacity. So why wouldn’t he also have capacity to sign the BDBN?
  • I visited my spouse on the day that his lawyer wrote her file note questioning his capacity. He did not appear drowsy, confused, or have difficulty concentrating. In fact, it was the best I had seen him in a long time.
  • When my spouse requested that his lawyer prepare the BDBN, he gave a reasonable explanation for changing his mind. He told her that his accountant had advised him that he should pay the money directly to me for tax reasons. Then, when he signed the BDBN, he reaffirmed this. His doctor asked him: “Do you know what you are signing?” and my spouse said that the document related to his will and that it would prevent his spouse from being “taxed out of her brains”.
  • The medical expert has acknowledged that it was not possible to know the extent to which my spouse’s cognitive function was impaired due to the medications administered. No one has given any positive evidence that my spouse could not understand the consequences of signing the BDBN.
  • In any event, even if my partner was cognitively impaired on the day he signed the BDBN, the BDBN was nevertheless valid, since it was executed in accordance with instructions he had given two days earlier, at which time he fully understood what he was doing.
  • The court must find that my spouse had mental capacity to sign the BDBN and so it is valid and binding.

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Expert commentary on the court's decision

“This case is one of the first to consider the mental capacity required to sign a BDBN. It is notable because the court took an approach suggesting that the mental capacity required to execute a BDBN is lower than the capacity required to make a will.”
Court rules in favour of spouse

In van Camp v Bellahealth Pty Ltd [2024] NSWSC 7, the Supreme Court of NSW ruled in favour of Ms Lindy van Camp, the de facto spouse of Dr Harry Nespolon, the deceased.

The court found that the BDBN signed by Dr Nespolon was valid and binding and ordered the superannuation fund trustee, Bellahealth Pty Ltd, to pay the $4.7 million death benefit to Ms van Camp.

Legal test for determining mental capacity

The court cited the High Court’s decision in Gibbons v Wright, the leading authority on the mental capacity required by the law to affect an inter vivos transaction (ie a transfer or gift made during one’s lifetime).

In Gibbons v Wright the High Court stated:

…the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.

In assessing Dr Nespolon’s capacity, the court said that consideration should be given to whether he “had the capability of understanding that all of his member benefits would be paid directly to Ms van Camp and would not be used by the executors in accordance with the terms of his Will, if such an explanation had been provided to him”.

Deceased had mental capacity to sign BDBN

The court was not satisfied by Bellahealth’s arguments that Dr Nespolon lacked mental capacity.

First, the court did not agree that the BDBN was a complex document, especially given Dr Nespolon’s background in medicine, law and business.

Also, the estate planning advice that Dr Nespolon had previously received meant that prior to his admission to hospital, he had been made well aware of the general nature of making a BDBN and the terms of his will.

In addition, Dr Nespolon had only recently executed his will, yet no concerns had been raised about that.

Further, Dr Nespolon was able to engage in coherent discussions about his affairs, including with his lawyer and doctors. His response to questions at the time he signed the BDBN demonstrated that he understood its general nature and effect, particularly the tax implications.

Although the court accepted that Dr Nespolon’s cognitive functioning may have been adversely impacted by medication at the time he signed the BDBN, it was not persuaded by the expert evidence, which it found neither weighty nor conclusive.

Finally, the court noted that the lawyer’s file note about Dr Nespolon’s mental capacity was based on a very short phone call, rather than an in-person meeting where she could properly observe him. Nor did she raise the matter again when she actually emailed the BDBN to him for signing.

Capacity to sign BDBN differs from capacity to make will

This case is one of the first to consider the mental capacity required to sign a BDBN. It is notable because the court took an approach suggesting that the mental capacity required to execute a BDBN is lower than the capacity required to make a will.

The court applied the High Court’s decision in Gibbons v Wright, referring to the case as “the leading authority on the question of the nature and degree of mental capacity to affect an inter vivos transaction”.

The court noted that both parties accepted Gibbons v Wright as the applicable law.

However, although Bellahealth accepted that the proceedings did not concern Dr Nespolon’s testamentary capacity, they submitted that authorities on testamentary capacity were relevant because of the nature of the transaction. Specifically, they argued that mental capacity required:

…the capacity to appreciate, when they are explained, the options available as to the use of the member benefit in accordance with the will, which in this case, was the ability of the executors to use part of the member benefit to retire debt, even if there is a tax consequence and to establish one or more separate superannuation proceeds trusts, and to weigh up and discriminate between those options.

The court rejected this argument, saying that:

[Bellahealth’s] references to comprehending, weighing up and discriminating between options seem to me to take the analogy with testamentary capacity too far and overlook that the key focus of the inquiry is on Dr Nespolon’s capacity to understand the general nature and effect of the BDBN, had such an explanation been given to him.

De facto spouse did not engage in unconscionable conduct

Bellahealth also alleged that Ms van Camp had engaged in unconscionable conduct in procuring the BDBN.

To establish unconscionable conduct, Bellahealth needed to show that Dr Nespolon was at a special disadvantage, Ms van Camp knew of that disadvantage and Ms van Camp unconscionably took advantage of that disadvantage.

The court rejected the trustee’s allegation, saying that it was “not satisfied that the BDBN was procured and signed by Dr Nespolon by reason of any unconscionable conduct on the part of Ms van Camp.”

Be mindful of complexities of superannuation in estate planning

This case serves as a reminder of the complexities involved in estate planning, particularly when it comes to superannuation.

It’s crucial to review and update your estate plan regularly, especially following major life events or changes in circumstances.

For those making end-of-life decisions, it’s important to seek professional advice and clearly communicate your intentions to family members. This can help prevent misunderstandings and potential legal challenges after your death.

For partners or family members assisting someone who is seriously ill, be cautious about involvement in financial or legal decisions. Even well-intentioned actions can be misconstrued later. It’s best to ensure the person has independent legal and financial advice.

The case also highlights that courts will generally try to uphold a person’s final wishes, even if they represent a change from previous plans. However, this depends on the person having the mental capacity to make those decisions at the time.

Lastly, this case underscores the significant sums that can be involved in superannuation death benefits. It’s essential for anyone with substantial superannuation to consider carefully how these benefits fit into their overall estate plan and seek expert advice on the most appropriate way to structure their affairs.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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