Superannuation binding death benefit nomination

A valid BDBN needs to be correctly signed, witnessed by two independent adults and be legally compliant in form. A valid BDBN in favour of a dependant will operate after the member's death to direct the superannuation death benefits to the dependant and outside of the deceased's member's estate.

The recent case of van Camp v Bellahealth Pty Ltd [2024] NSWSC7 examined a legal challenge to the validity of a BDBN.

Current legal position

Notwithstanding their method of execution - which is similar to a Will - a BDBN is not a Will and the law relating to Wills does not apply to a BDBN.

A BDBN is the exercise of a contractual right by a super fund member. The gift of the superannuation death benefits stems from the lifetime exercise of contractual rights by the member and not from their death. A BDBN is, in effect, succession post-mortem and not testamentary succession.

Facts of the case: van Camp v Bellahealth Pty Ltd 

On 26 July 2020, the day he died from cancer at the age of 57, Dr Harry Nespolon signed a BDBN in relation to his self-managed super fund, the Nespolon Super Fund (Fund).

The Fund trustee was Bellahealth Pty Ltd (Bellahealth). Dr Nespolon was the sole member of the Fund and the sole director and secretary of Bellahealth. Dr Nespolon signed his last Will on 23 July 2020. He received advice in relation to his Will and his BDBN.

The Superannuation Fund trustee was not controlled by Ms van Camp after Dr Nespolon's death - and the trustee did not pay the $4,722,000 to Ms van Camp.

Ms van Camp commenced legal proceedings against the trustee Bellahealth and two of its directors. She sought, amongst other things, a declaration that the BDBN was valid and for an order that Bellahealth pay the Fund benefits to her. The defendants cross-claimed for orders and declarations that the BDBN was effectively invalid.

The BDBN signed by Dr Nespolon directed his superannuation benefits to his de facto partner, Cindy van Camp (Ms van Camp). The superannuation benefits had an estimated value of $4,722,000.

The relationship between Dr Nespolon and Ms van Camp commenced in June 2014 and they commenced living together in January 2015. They have two daughters, one born in July 2015 and the other in December 2017. They lived together in Dr Nespolon's Cremorne property, in Sydney.