Inference & the Presumption of Death

On the weekend I was asked if the Courts have made orders about the presumption of death for people who have disappeared that were not as infamous as Lord Lucan. The common law recognises that a period of time (usually at least seven years in most jurisdictions) must pass following a person’s disappearance before they are presumed to be dead. However, it is not always necessary to wait for that period for a person to be held to be deceased, even where that person’s body has not been found.

Over the years Courts have had to make rulings regarding the death of a professional diver who went missing during a dive and was presumed to have died. Similarly where people have been aboard ships that are wrecked; a pilot who has not reached their destination; and where a man had been washed from rocks while fishing and had not resurfaced.

In many jurisdictions it may be difficult to obtain a death certificate to conclusive prove that a person has died. In these cases where there is evidence before the Court in which a safe inference could be drawn that a person had died it can disregard the usual requirement of seven years. In these instances the Court can grant probate or letters of administration.

In August 2014, Peter Maynard travelled by himself to Bali on a surfing holiday. He arrived in Bali and checked into his accommodation, but never checked out and was not seen again after he went surfing. A local dive master recovered a fragment of his surfboard, but despite an extensive search, Peter’s body was never recovered.

Peter was married and had three children, but did not leave a Will. The Supreme Court of Queensland held that Peter died in Indonesia without his body being found and no death certificate was issued. The Court held that due to his connection to Queensland it was appropriate for the case to be heard and determined in Queensland.

Due to the close relationship Peter had to his wife and children; that the time he disappeared is known, that he went surfing in what were apparently quite difficult seas; the remnants of his surfboard have been found and suggest a severe impact with a coral reef; that extensive searches were carried out without success; and that he has not contacted his wife, any other member of his family or his friends, or operated any of his bank accounts, since August 2014, the Court ordered that his wife could swear to his death and be granted letters of administration upon intestacy in those circumstances.