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Where does the burden of proof lie?

Ken purchased tickets and travel insurance for his trip to Peru 6 months before he left. Sadly, while he was away, his mother, who had suffered from dementia for a number of years, passed away. Ken curtailed his 3-week trip in order to return home. He believed that the changes to his travel plans would be covered by his insurance policy. Ken’s mother’s death certificate read in response to cause/ causes of death:

               “End stage dementia few months

               Dementia few years / frailty of old age”.

Ken’s claim for his cancellation costs and the cost of returning to New Zealand was declined by his insurer on the basis that his mother had died from a pre-existing medical condition. Ken complained to FSCL about the declinature.

Ken’s view

Ken took out the insurance ‘in good faith’ to cover any unknown or unforeseeable events and his mother’s death was an unforeseeable event. Ken believed that the multiple causes of death listed on the death certificate (“dementia few years / frailty of old age”) meant the insurer was obliged to consider the claim because there was no definitive cause of death. No doctor had informed Ken that his mother was terminally ill, nor did she have any of the ‘typical ailments’ which constitute a pre-existing medical condition. Ken did not believe that dementia could be a direct and definitive cause of death.  

The use of the ‘slash’ on the death certificate created the impression to Ken that both factors contributed equally to her death. Ken believed his mother may have died of ‘from too many birthdays’ regardless of dementia and that is why the doctor’s certificate used a slash.

Ken argued the insurance company had the onus of proving that his mother died of dementia rather than for him to disprove at a difficult time.

Insurer’s view

The insurer said that there was no additional cover for relatives with pre-existing medical conditions.  Had Ken inquired about additional cover for his mother’s dementia prior to travel, the insurer would have told him no cover was available.

The insurer relied on the exclusion clause which said it would not pay for any loss arising directly or indirectly out of a pre-existing medical condition.

A pre-existing medical condition was defined in the policy as including any, existing or recurring, illness of which Ken or his mother was aware of.

The insurer accepted that Ken did not expect his mother would pass away while he was away overseas. However, based on the death certificate, it was clear that dementia was a contributory factor in the death. The insurer stated that primary causes of death are listed initially, with secondary causes listed thereafter. In turn, end stage dementia would be the primary cause, with dementia and frailty of old age being contributing factors. Dementia, the insurer claimed, was a pre-existing medical condition because it was an existing illness which Ken was aware of.


We determined that the slash on the death certificate may be used to represent ‘or,’ or it may be used in substitution of the Latin phrase cum, which means combined with. The slash is commonly used to break down, in list format, the contributing causes. In this respect it was not used to indicate possible causes, rather combined causes.

It was clear that the immediate cause of death was ‘end stage dementia few months.’ ‘Dementia few years’ and ‘frailty of old age few years’ were underlying conditions which may have contributed to Ken’s mother’s passing. There was no need for the insurer to prove that either dementia or frailty of old age killed Ken’s mother independently. Dementia was a cause listed in the official document on the first line and was enough to satisfy the pre-existing medical condition policy exclusion.

Further, Ken could not have declared his mother’s dementia and tried to attain further cover for the possibility of bereavement because there was no option in the policy for an insured person to apply for additional cover for a relative’s pre-existing medical condition


Unfortunately for Ken, we found that the declinature of the claim was reasonable because dementia was a pre-existing medical condition that Ken was aware of.