A recent Supreme Court ruling (March 2015) has sent shock waves through the many insurers that are offering single premium life insurance policies. Whether named as unit-linked single-premium life assurance policy, life assurance bonds, capital assurance or any other more or less fanciful denomination, any life insurance bond that is made up solely for the purpose of investment faces one very serious prospect: being declared void by Spanish Courts.

But this ruling has not come from nowhere: for some years already the administrative section of the Spanish Supreme Court is applying a not-too-well know article of the Consolidated text of the Private Insurance Supervisory Act, which states the following:

Article 4. Forbidden transactions and sanction of nullity. It is forbidden for insurance companies, and its conclusion will determine its utter nullity and voidness, the following transactions:

a)      Those that lack actuarial technical base

But what does the word “actuarial base” mean? Simply put, traditional actuarial base or science largely revolves around the analysis of mortality and the production of life tables, and the application of compound interest. Which is exactly what these “life insurance” policies, for want of a better word, actually lack.

The Spanish highest Court, in declaring the nullity of these contracts in at least 8 rulings, has argued the following:

“Judging by its features, this contract cannot be classed as an insurance policy but a capital investment”.

“In normal insurance death impacts the assurer in such way that, when a claim occurs, it is the company that suffers a loss”

“The evidence points to the existence of a financial investment accord that pursues a tax advantage”

“The blurring of the risk element is, in these contracts, complete and distorts the very nature of an insurance contract”

“If there is no transfer of risk from insured to insurer there is no insurance contract”

“It makes no palpable difference if the insured lives or dies”

“Where age or medical condition –absence of medical questionnaire being symptomatic- are not parameters of any interest, the contract is doubtfully an insurance policy”

“It is easily observable that the risk has been all but completely eliminated from these deals, in fact the health condition of the subscribed is indifferent, to the point of disregarding the medical exam.”

“The nature of financial product has been repeatedly concluded by Section 3 of the Supreme Court”

Judging by these conclusions, thousands of contracts signed by expats face a serious risk of nullity: to name a few, Lex Life/Altraplan’ life policies, Nordea’s Capital Managed Plan, Seb-Irish Life’s Spanish Porfolio Bond, Prudential’s Spanish International Prudence Bond, Old Mutual’s Executive Investment Bond, Danske Life/Danica Life…and there is no time limitation to being a claim.

The Court of Appeal in Paris, in a ground-breaking ruling of the 24th of September, has ordered that a number of employees of the almost defunct Landsbanki face trial for fraud.

The indicted individual (cited below) will now stand formally accused of several counts of fraud, namely:

1. Fraud consisting on knowingly concealing financial difficulties faced by Landsbanki since 2006 and its near impossibility to meets its obligations towards its customers.
2. Fraud consisting on cross-financing between banks of the same group, i.e. banks acquiring capital from other group banks, increasing thereby the threat to viability and bankruptcy.
3. Fraud consisting on making customers believe that not only were they not taking any risk but also, that by mortgaging their properties for amounts significantly higher than they actually needed for liquidity (the part of the loan left to them), they would have nothing to repay until the maturity of the loan as the interest would be covered by the yields on the investment.
4. Fraud consisting on encouraging customers to buy Icelandic bonds knowing yet concealing the fact that these would, inevitably, lose all its value.
5. Fraud consisting on abusing the trust of customers who were not advised that the bank would have to subscribe, on their behalf, Landsbanki Kaupthing obligations.

The persons accused of fraud are:

Bjorgolfur GUDMUNSSON (Icelandic), Gunnar THORODDSEN (Icelandic), Torben BJERREGAARD (Danish), and the managers Olle LINDFORS (Swedish),  Morten Juul NIELSEN (Danish), Thomas NIELSEN (Danish), Vincent FAILLY (French) and the sales representatives, Robert ANTHONY (British) and Pascal MARCEROU (French).