Check whether the written duty-of-disclosure information was given before the contract

Key facts

Human involvement

Yellow · Close supervision

How AI is used

From the proposal file, record the date the contract was entered into, the date of any writing about the duty of disclosure, and whether that writing covers the general nature and effect of the duty and states that the duty applies until the proposed contract is entered into. For life insurance, record whether a person other than the insured who would become a life insured received that writing, and whether the writing covers the effect of subsection 27AA(2). Record the date of the insured's most recent disclosure for the duty and the date of any acceptance or counter-offer, and whether a reminder notice went with that acceptance or counter-offer. Do not decide that a failure was fraudulent, and do not decide that the insurer may exercise a right.

What the lawyer must review

The lawyer decides whether section 22 of the Insurance Contracts Act 1984 (Cth) was complied with and whether a right may be exercised. Subsection (1) requires the insurer, before the contract is entered into, to clearly inform the insured in writing of the general nature and effect of the duty of disclosure, and that the duty applies until the proposed contract is entered into. If the contract is a contract of life insurance, the writing must also cover the effect of subsection 27AA(2). The opened text of subsection (1) goes from paragraph (a) to paragraph (c). There is no paragraph (b) in that text. Subsection (2) requires the insurer, before a life insurance contract is entered into, to clearly inform in writing any person other than the insured who would become a life insured of the subsection (1) matters. Subsection (3) requires a reminder notice, given with the acceptance or counter-offer, where subsection (1) was complied with, the insurer accepts the insured's offer or makes a counter-offer to enter into another contract, and that acceptance or counter-offer is made more than two months after the insured's most recent disclosure for the duty. The reminder must state that the duty applies until the proposed or other contract is entered into. Subsection (4) says that if the regulations prescribe a form for the subsection (1) writing or the subsection (3) reminder, the writing may be in accordance with the prescribed form. Those regulations were not opened. Subsection (5) says an insurer who has not complied with subsection (1) and, if applicable, subsection (2) may not exercise a right in respect of a failure to comply with the duty of disclosure unless the failure was fraudulent. Subsection (6) says that if subsection (3) was required and was not complied with, the insurer may not exercise a right in respect of a failure to comply with the duty in relation to a new matter relating to the contract, unless the failure was fraudulent. Subsection (7) says a new matter is a matter of which the insured first becomes aware after the insured's most recent disclosure for the duty. The lawyer decides fraud. This check does not decide which pre-contractual duty applies.

Written for / version

US