BARRY signed a binding death benefit nomination in hospital on the same day that he tragically passed away.

The effect of the nomination is that the whole of Barry’s substantial superannuation fund is to be left to his de facto partner.

Barry’s executors say that the death benefit nomination is not valid because Barry lacked the requisite mental capacity at the time he signed the nomination and in the alternative, they claim that he was the victim of unconscionable conduct on the part of his de facto partner.

The dispute proceeds to a four-day hearing in the Supreme Court.

The Court is presented with numerous affidavits, medical records and hears oral testimony from medical experts.

The evidence establishes that Barry was administered morphine on multiple occasions during each of the several days he spent in hospital.

Expert medical opinions confirm that the treatment would have affected Barry’s capacity to know and approve of the contents of the death benefit nomination and affected his ability to concentrate on, and appreciate complex matters.

The Court states that the parties must establish on the balance of probabilities, whether Barry was capable of understanding the broad operation of the transaction but not necessarily the precise legal consequences in light of the legal “presumption of sanity”.

The executors argue that Barry was not capable of weighing-up his available choices, understanding the tax consequences nor properly considering the option of establishing superannuation proceeds trusts.

Ultimately, the Court decided that because the death benefit nomination was a relatively short and straightforward document and because there was no conclusive evidence of a lack of mental capacity, Barry did in fact understand the nature and effect of the nomination.

The Court was also not satisfied that Barry was the victim of any unconscionable conduct or unconscientious exploitation and that the requisite elements of “special disadvantage” and knowledge of that special disadvantage had not been established.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column is only accurate at today’s date and is not legal advice.

By Manny WOOD