Presumption of Death and Probate (NSW)

In order to obtain a probate grant in New South Wales, an applicant must establish that the person in question is deceased. An applicant usually fulfils this requirement easily by providing a death certificate. When a death certificate is unavailable, there are other legal avenues that can be pursued to establish that the testator has died. This article explains the role of presumption of death in a deceased estate administration in New South Wales.

Establishing Death

When a person applies to the Supreme Court of NSW for a Grant of Probate (when there is a will) or Letters of Administration (when there is no will), they must prove that the person is actually deceased. There are several ways to establish death under NSW law, but the most common is for the applicant to produce a death certificate from the Registry of Births, Deaths and Marriages.

There is an alternative way to prove that someone has passed away, even with no death certificate. The Supreme Court can presume that a person is deceased in certain circumstances and grant probate on that presumption. A person may be presumed dead if no one has seen or heard from them in seven years, and there is no evidence to the contrary. The applicant must seek leave from the Registrar to swear to the person’s death and produce sufficient evidence for the court to assert a presumption of death.

The test for a presumption of death is an absence of knowledge about the missing person. Where the circumstances surrounding the disappearance or death are ambiguous, the evidentiary burden on the probate applicant grows in proportion.

The court requires evidence to establish a presumption of death, including proof of the following:

  • The missing person’s age and physical and mental health;
  • The nature of the relationship between the applicant and the missing person;
  • The circumstances of the missing person’s disappearance;
  • Information on the missing person’s behaviour or conversations before their disappearance;
  • Affidavits from relatives and friends who would ordinarily be in contact with the missing person;
  • Copies of media coverage of the missing person’s disappearance;
  • Proof of any enquiries made into the missing person’s location, including with any businesses, unions and clubs that the missing person attended;
  • Whether the missing person left unresolved debts and unclaimed life insurance; and
  • Whether there has been any activity on the missing person’s bank accounts.

In Guo v Gao [2021], the Supreme Court of NSW allowed an application on the succession list for a person who had not been seen for over twenty years. The plaintiff, in this case, asked the court to declare her mother presumed dead. The mother had last been seen in April 2001, and despite extensive searches, including an official investigation by the NSW police, no trace of her was ever found. None of the missing person’s friends or family members had heard from her. The mother was not insured, and there was no need to notify the insurance company of the proceedings. The Supreme Court ordered that the mother was presumed dead and allowed probate of her estate.

Similarly, in Zanella v Madden (2007), the Supreme Court held that there was sufficient evidence to presume a person’s death after twenty years of no contact. Further, the court found that it was unnecessary to place advertisements to find the missing person after such a long period in light of the small sums of money at issue and the high probability that the man was deceased.

Inference Of Death

It is necessary to distinguish cases based on a presumption of death from cases where the court can infer death from the circumstances of the disappearance. While a family must wait at least seven years to assert a presumption of death, the court can bypass this requirement and grant probate where there is an inference of death. Justice Hallen defined the concept recently to explain that even when there is no body, “the death can be inferred from the surrounding circumstances … it can be inferred that it is more probable that the person has died, rather than that he or she is living”.

In some cases, it is straightforward to establish an inference of death. The unlikelihood of someone surviving a plane crash or other major accident means that the court can easily infer a probability of death in those circumstances. For instance, in the recent case of The Estate of Alan Bruce Beeby [2020], the missing person was travelling on a vessel that capsized, and despite extensive searches, his body was never recovered. The Supreme Court of NSW dispensed with the requirement for a death certificate in this case and granted probate on the inference that the missing person had almost certainly died at sea.

Sometimes, the Supreme Court will accept alternative proof of death where a Death Certificate is not available. If you require assistance with an application for probate in this unusual circumstance, please contact Go To Court Lawyers.

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 Armstrong Legal in 2020.
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