Grant of administration; presumption of death

In New South Wales s40A(1) of the Probate and Administration Act 1898 (NSW) provides that if the Court is satisfied by direct evidence or on the presumption of death, that a person is dead it has jurisdiction to grant administration of the person’s estate, notwithstanding that subsequently the person was living at the date of the grant.

the circumstance underlying the presumption is that the absence of the missing person is without acceptable explanation…There are a number of circumstances to be taken into account and one of these is if there is in fact a valid explanation as to why a person has not been heard of for the period of seven years or more.

Estate of Rita Gamble (10 December 1973, unreported)

Where a grant is made on the presumption of death s40B provides:

  • (1) If a grant of probate or administration is made on the presumption of death only, the provisions of this section shall have effect.
  • (2) The grant shall be expressed to be made on the presumption of death only.
  • (3) The estate shall not be distributed without the leave of the Court.

There are four essential matters which must be found on the balance of probabilities.

  • there must be an absence for seven years.
  • the missing person has not been heard of in that time,
  • those who might be expected to have heard of the person have not done so, and
  • that due inquiries have been made.

Having referred to a presumption of life that occurs in certain circumstances, Axon v Axon (1937) 59 CLR 395 continued:

“… The presumption of life is but a deduction from probabilities and
must always depend on the accompanying facts …. As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises. If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or to have learnt of his whereabouts, were he living, then, in the absence
of evidence to the contrary, it should be found that he is dead.”

Dixon J in Axon v Axon (1937) 59 CLR 395 at 405.

The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758

Neil Walter Morison (”NWM”) went missing in about 1972 and has not been seen, or heard of, since. There are no reasons known to NWM’s sister Jill (”the Plaintiff”) for him not to have communicated with the members of his family since then. NWM joined the Australian Defence Force in April 1971 but was discharged on 13 October 1972 for being absent without leave.

At the time that NWM disappeared he was not married, or in a de facto relationship, and had no children. NWM had eleven siblings, some of whom died before the plaintiff made the application. Both his parents had died. Before he went missing, NWM appeared to be happy, about his life, had been in regular contact and had strong family relationships with his family. There is no direct evidence that NWM has died. However, because of the time that has elapsed, the Court held that it was not necessary to bring positive proof of his death.

The Court was satisfied that all reasonable investigations had been undertaken by the Plaintiff to determine whether NWM is still alive and any further searches would be unnecessarily expensive and time-consuming, with no reasonable prospect of eliciting any further information importantly the cost of further investigation is, proportionately, too great: s 56 of the Civil Procedure Act,

The Court held that there was no acceptable, affirmative, direct, or inferred evidence that NWM was dead, the Plaintiff relies upon proof of death by the presumption of law. Following examination of the evidence to determine whether it is consistent with the presumption and the plaintiff’s submissions; the Court was satisfied, on the balance of probabilities that

  • NWM has been missing for more than 7 years;
  • his disappearance is unexplained and his body has not been discovered or identified.
  • There was a sudden cessation of communication which has now persisted for a long time. The persons who would have been likely to have heard from NWM, have not heard of him, in circumstances that it would be expected that he would have been in contact with each if he were still alive.
  • All due inquiries have been made appropriate to the circumstances

Section 40B(3) of the Probate and Administration Act provides that the estate shall not be distributed without the leave of the Court either unconditionally or subject to such conditions as the Court deems reasonable, and in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that the person will restore any money or property received by the person or the amount or value thereof in the event of the grant being revoked.

The Court was satisfied, taking into account the time elapsed since there has been any contact with, or communication from NWM, that leave to distribute should be given unconditionally with the Plaintiff’s costs, calculated on the indemnity basis, paid out of the estate of NWM.

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