Presumption Of Death (NT)

When someone passes away in the Northern Territory, it is often necessary to apply to the Supreme Court for a grant of probate to distribute the assets of the estate. It is only possible to obtain a probate grant in the Northern Territory when the applicant can prove that the person in question is, in fact, deceased. Typically, an applicant fulfils this requirement by presenting a death certificate as part of their probate grant application. When there is no death certificate, the applicant can pursue other legal avenues to establish that the person is deceased. This article defines the presumption of death in deceased estate administration in the Northern Territory.

How do you establish death?

A personal representative applies to the Registrar of the NT Supreme Court for a Grant of Probate (when there is a valid and comprehensive will) or Letters of Administration (when there is no valid will or no willing executor). An essential part of this application is the requirement to legally establish the person’s death. To satisfy this requirement, the applicant usually attaches a death certificate from the NT Births, Deaths and Marriages department. However, there are alternative ways to prove that someone is deceased, even in the absence of a death certificate. The NT Supreme Court is legally permitted to make a presumption of death in specific circumstances and make a probate grant order on that basis. A will cannot take effect unless a court makes a finding of presumption of death.

Under the Administration and Probate Act 1969, the court can grant probate of a will or administration of an estate if, “It is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead”. The Law of Property Act 2000 allows that a presumption of death can be made for a person who has been absent for seven continuous years without making contact, where there is no satisfactory explanation after extensive inquiry.

When will death be declared based on a presumption of death?

Pursuant to the High Court decision in Axon v Axon (1937), it is a common law standard for courts to declare death after a person has been missing for seven years. However, the passing of time is not in itself sufficient proof of death. The court also considers the following:

  • Affidavits from the person’s friends and relatives who would normally have contact with them;
  • Proof of endeavours to locate the missing person;
  • Proof of media coverage of the person’s disappearance;
  • Activity on the person’s bank accounts, and status of their loans and life insurance;
  • The personality of the missing person, their age and mental and physical health;
  • The missing person’s behaviour before their disappearance;
  • Nature of the relationship between the missing person and the applicant; and
  • Circumstances surrounding the disappearance. Where the circumstances are unclear, the applicant has a greater evidentiary burden to prove that the missing person is deceased.  There must be no evidence to contradict the presumption of death.

When the court issues a grant in these circumstances, the grant will specify that it is made on a presumption of death. The executor or administrator in charge of the estate is not permitted to distribute the estate without the express leave of the court, which it can give at any time. The court can direct that distribution is only made to beneficiaries who give an undertaking or security that they will return their bequest or repay the value if the probate is revoked. Additionally, the court can direct the personal representative to publish appropriate notices (such as a notice specifying the deadline for lodging a caveat) before distributing the deceased estate.

When the notice period expires, the executor or administrator can distribute the estate and is not liable for any claim that was not lodged during this period. If there is an in-time caveat, the personal representative cannot distribute the estate except in accordance with a court order.

Inference Of Death vs presumption of death

The presumption of death must be distinguished from cases where a court can infer death from the circumstances surrounding the disappearance. The court can waive the seven-year wait requirement and grant probate where they can make an inference of death. This means that given the specific situation, it is more probable that the person is deceased rather than living. For instance, a court can easily infer death after a catastrophic plane crash, given the low likelihood of a person surviving such an event.

The team at Go To Court Lawyers can help file a probate application where a presumption of death is required. This is just one of many scenarios where an executor, administrator or family member might benefit from the support of an experienced wills and estate solicitor. Please call our offices or use this form to contact our experienced solicitors. 

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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