Presumption of Life?

In the last few posts we have discussed the fact that a person may be presumed dead if they have not been heard from for a certain period of time (in most circumstances seven years). The seven-year period elapsing does not of itself raise any presumption of death it is a deduction from probabilities and depends on the accompanying facts. Therefore if someone has disappeared and has been missing for at least seven years evidence must be submitted to the Court providing evidence they are dead.

Markijan Lashko aged about 55 disappeared from his home, where he had been living alone around the middle of 1968. In 1958 had made a will appointing the Public Trustee as his executor and leaving the whole of his estate to his son, Paul Lashko. His only significant assets were his home and contents, a small farm, and, a small bank account

In about 1972 the local council sold the home and land for non-payment of rates. The farming property remains registered in his name and Paul has continued to pay the rates on it over the ensuing years.

In January 2011 Paul applied to the West Australian Supreme Court for a declaration that Markijan Lashko is presumed to be dead to enable Paul to apply for a grant of probate of the Will.

Markijan has not been seen or heard of in the 43 years which have passed. He was aged about 55 years at the time of his disappearance. If he were alive he would, therefore, be over the age of 98 years. There is no record of his death in Western Australia or in any other Australian State or Territory.

He was on good terms with his only son who, at the time of disappearance, had been away from their home serving in the Royal Australian Navy, initially in Melbourne and then in Sydney. Markijan and Paul wrote to each other by letter intermittently but there has been no letters since Markijan disappeared in mid-1968.

Paul returned to Markijan’s home about five or six months after his father disappeared, the house was intact, and items of his father’s personal property and clothes were all in place, as were his van & motor. The Court held that it is extremely unlikely that, were he alive, Markijan would not have communicated with his son, his neighbours, or taken steps to protect and preserve his house and property.

Paul has made enquiries with Markijans neighbours, and his only other known friend but neither had been told by Markijan that he was leaving or had any reason for his unexplained departure. Markijan Lashko’s body has never been found.

The Court held that in the circumstances Markijan probably died shortly after his disappearance. As more than seven years had elapsed since then, the court declared that Markijan Lashko is presumed to have died and that Paul Lashko should now have leave to swear to his death and proceed to obtain a grant of probate of his father’s last will.

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