Suicide text does not over-ride BDBN

A suicide note via text message is not sufficient to terminate a relationship for the purposes of a $1.22 million death benefit, the Federal Court has found.

Nine months before taking his own life in 2019, Victorian man Pino Corbisiero had made a binding death benefit nomination (BDBN) that his then de facto partner, James Nguyen, receive 100 per cent of the benefit.

On the morning of the day of his death, Mr Corbisiero sent a text message to his sister:

“This is my will and testament as from 1st of September to whom it may concern I want 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 all for he has put me in the position or stage of my life where I had enough.  Can I also ask my family this only be family thing I want no friends of james to be there what so ever.  I am very sorry I Done this but I need peace and hopefully I get that now really sorry but please understand I happier now than before.”

His superannuation trustee determined Mr Nguyen was not Mr Corbisiero’s spouse at the time of his death, and refused to pay the benefit. Mr Nguyen complained to the Australian Financial Complaints Authority (AFCA), which subsequently set aside the decision in May last year, on the grounds it was not fair and reasonable, and awarded 100 per cent of death benefit to Mr Nguyen.

Mr Corbisiero’s mother, Rosario Corbisieri, also executor of his will, then appealed the AFCA decision, maintaining that at the time of her son’s death, the relationship with Mr Nguyen had terminated, and therefore Mr Ngyuen was not entitled to the death benefit. In June, the decision was set aside and remitted back to AFCA for further consideration.


In December, Mr Nguyen appealed that judgment and sought to have the AFCA decision reinstated. Mrs Corbisieri sought to defend the judgment.

In that judgment, it was determined that the “only construction of the text reasonably open is that Mr Corbisiero intended by the writing and sending of it to terminate the relationship”, and that he had “made an unequivocal statement of his intention to terminate his de facto relationship with Mr Nguyen”.

In the Federal Court in Melbourne on Thursday, Justices Snaden, McElwaine and Meagher ultimately decided Mr Nguyen was entitled to the benefit.

Justice Snaden said the appeal turned on “whether the learned primary judge was correct to discern an error of law in AFCA’s conclusion that Mr Nguyen remained Mr Corbisiero’s spouse at the time of the latter’s death”.

He said the text message, on any view, showed Mr Corbisiero intended to end his relationship with Mr Nguyen.

“The more significant question, however, is whether the text message was, in and of itself, competent to terminate Mr Corbisiero’s relationship with Mr Nguyen,” he said.


”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”.

“Where, however, 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…

“In the present case, the only such conduct – which, as I have said, unambiguously effected the end of the relationship between Mr Corbisiero and Mr Nguyen – was Mr Corbisiero’s suicide.

“But, as I have noted, that conduct could not stand as having ended the relationship prior to Mr Corbisiero’s death.  Mr Corbisiero’s communicating to his sister his intention to end his life (and, necessarily thereby, his relationship with Mr Nguyen) could not stand in that category either.”

Justice McElwaine agreed with Justice Snaden that the appeal should be allowed, but said resolution of it should be determined only by the text of the rules of the superannuation fund.

“In my view, the textual link between entering into and terminating a de-facto relationship is clear.  It is coincident with commencing to live with a person on a genuine domestic basis in a relationship as a couple and ceasing to do so,” he said.


The court also ordered that Mrs Corbisieri pay Mr Nguyen’s court costs.

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