Presumption of death isn’t always straight forward

In August 2006 Isabella Thomson (“Isabella”), and her only child Arthur were found dead at the home they shared in Reinkes Road, Wooroolin Queensland. His cause of death was nominated as “gunshot wound to the head”. Police found a handwritten note under the electricity box on the front verandah. It read

“Ring 000. We are both dead. Mum in bedroom. Me in shed. Thanks”.

In a piece of furniture, police located a copy of a letter written by Arthur’s wife Susan to her mother in 1999. The contents of this letter led police to fear for Susan’s safety and they undertook enquiries as to her whereabouts.

Susan, the only child of Marie Shaw, met Arthur when she was about 15 and Arthur was in his early 20s. Susan left home to live with Arthur and broke off contact with her parents. After a period of five years Susan reconnected with her parents and remained in regular contact until shortly after her fathers death in November 1999.

Susan rarely left the Reinkes Road property, but kept in touch with her mother and an aunt. The last communication with either of those people was the letter from Susan, found in the house with other important papers after Arthur’s death.

Susan hasn’t been heard from since that correspondence; her bank accounts or other services haven’t been accessed since late December 1999. The Public Trustee placed advertisements requesting Susan contact them in regard to Arthur’s estate in major newspapers in July 2009 and October 2014.

A coronial investigation determined Susan was deceased, however the date, place or cause of Susan’s death was unknown. A death certificate was issued in May 2008.

All three estates are administered by the Public Trustee and all three were Intestate estates. The issue that the Queensland Supreme Court had to decide is whether Susan pre-deceased Arthur by at least 30 days, if not her estate would, by way of survivorship, become the property of Arthur’s estate. However if Arthur unlawfully killed Susan, the forfeiture rule would operate to deny Arthur’s estate of the benefit derived from the right of survivorship.

The evidence supporting that Susan died in late 1999 or early 2000, falls into four categories:

  • There has been no contact with Susan’s loved ones since late December 1999.
  • Susan’s financial and health records reveal an absence of any transactions since December 1999.
  • Extensive inquiries undertaken by the Salvation Army in the second half of 2000, and the Queensland Police Service from 2006 were unsuccessful in locating Susan.
  • Arthur’s conduct subsequent to Susan’s last known contact confirmed Susan was no longer at their property from early 2000. Including an unannounced visit to Susan’s mothers house in 2000. Where he told her Susan had disappeared one day at Gympie.

There is little evidence that Arthur was violent towards Susan. Certainly nothing suggests a history of domestic violence. Susan’s letter to her mother did not suggest domestic violence. Similarly, the fact Arthur took his own life, after the death of his mother, is at best equivocal. Arthur had told friends that he had cancer. If Arthur believed that to be so, he may have had good reason to take his own life following the death of his mother.

The Court held there was insufficient evidence to establish that Arthur unlawfully killed Susan or that she died in late 1999 or early 2000. It is more likely that Susan, as a consequence of the difficulties in her relationship with Arthur, decided to leave. Further, the lack of subsequent contact with her mother and aunt, is consistent with Susan’s behaviour when she ran away to be with Arthur.

However in addition to no contact the fact that Susan had not touched any of her bank accounts, or accessed Medicare

could lead to a conclusion that Susan was dead some years before 2006. However, those facts are also consistent with a conclusion that Susan had established a new life under another name. Therefore on the balance of probabilities Susan is presumed to have been alive at that time, and the property passed to Susan by way of the right of survivorship on Arthur’s death and forms part of Susan’s estate.

 

One thought on “Presumption of death isn’t always straight forward

  1. These situations are all so interesting and complicated. It goes to show the effort and consideration that goes into each of these cases; and how important these decisions are for probate (and how important it is to have a will!).

    Like

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