Following a person’s disappearance for at least seven years, that person may be presumed to be dead. However, whether the person has died is a question of fact therefore it is not always necessary to wait seven years – even where that person’s body has not been found.
Wiehong Guo (“WG”) was a permanent resident of Australia. She had been born in China but moved to Australia in 2000 where she purchased a property in Carlingford (“the Carlingford Property”). WG continued to maintain relationships with people in Australia and her family in China.
WG had not been seen since April 2001. Despite inquiries police couldn’t locate her, nor did any bank or government agencies have any records or transactions after this date similarly immigration records indicated that WG had not left Australia.
On 1 October 2019, WG’s daughter Sijia Guo, (“the Plaintiff”) sought various forms of relief, including a family provision order based upon the premise that WG was dead.
Yong Wei Gao, WG’s husband (but not the Plaintiff’s father) was named as a defendant. Yong Wei married WG in about March 2000 and they remained married at the date of her disappearance.
Sijia and Yong Wei agreed that WG should be considered dead but as there was no proof that they had died required the Court to decide that the missing person was dead. The onus of establishing the presumption the WG was dead rests on the party who seeks it, and it is found on the balance of probabilities.
The court found that there was no acceptable, affirmative, or direct evidence that WG is dead. Nor is there proof of death by inference therefore, the parties rely upon proof of death by presumption that the person has been absent, and not been heard of, or from, by those who might have been expected to hear of, or from, her, or him, for seven years.
The Court was satisfied, on the balance of probabilities, WG has been missing for more than 7 years; her disappearance was unexpected and unexplained and those most likely to have not heard from her. WG’s body has not been discovered or identified. Importantly, there is no evidence to raise an issue that WG is alive or any reason to believe that she was alive, which would rebut the presumption of death.
Section 40A of the Probate and Administration Act 1898 (NSW), relevantly, provides:
(1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.
Section 40B(3) of the Probate and Administration Act, relevantly, provides:
The estate shall not be distributed without the leave of the Court.
The Court was satisfied that WG, on presumption of death, is no longer alive and left no Will. Sijia and Yong Wei are entitled under the operation of the rules of intestacy, to share the estate of WG each consent to an independent administrator being appointed to administer the intestate estate of WG.
Additionally, Yong Wei will not sell, mortgage, charge, or in any way encumber, or deal with, the Carlingford property until further order of the Court.