Presumption of death ACT

Section 9A of the Administration and Probate Act 1929 (ACT) provides that probate of the will or administration of the estate, of a person may be granted by the Supreme Court if it is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead.

This is usually done using a death certificate which is annexed to the supporting affidavit for a grant of probate or letters of administration of the deceased estate.

At common law

The common law presumption of death after the lapse of seven years was described by Dixon J in Axon v Axon:

“…at least seven years have elapsed since he was last seen or heard of by those…likely to have received communication from him…in the absence of evidence to the contrary, it should be found that he is dead.”

(1937) 59 CLR 395 at 405

Reliance upon the presumption is not necessary when the facts establish, even by inference, that the person is deceased.

In the ACT death can be proved by an application to the ACT Supreme Court under r 3012 of the Court Procedures Rules.

Background

EI married in January 2020. He lived with his wife, two of his daughters and his stepdaughter at a house in a suburb of Canberra.

EI suffered from anxiety and post‑traumatic stress disorder. His first partner had died under tragic circumstances. At about midnight on 15 July 2021, EI left the family home in an emotional and intoxicated state. Shortly after he left, he sent a text message which included a statement that he loved the plaintiff and a statement that he hated the world and could not live in it anymore.

Police ceased searching on 17 July 2021 they considered that he may be dead due to the bad weather conditions. They ceased searching on that date.

The decision

In Re Estate of EI [2022] ACTSC 55 the plaintiff sought a declaration that EI died on 15 July 2021. The plaintiff submitted that EI has not:

• returned to the family

• used the joint bank account he held with the plaintiff.

• used their shared email address to send any emails.

• contacted the plaintiff or any other members of his family.

The court was satisfied that on the balance of probabilities EI died on 15 July 2021. Ordering the costs of the application be paid out of the estate.