If a person has been missing for at least seven years, a court may declare that the person is presumed to be dead. Owen Dixon J summarised the common law principles to be applied when a person has in circumstances involving the disappearance of a person,
…who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.Axon v Axon (1937) 59 CLR 395 at 405
In South Australia, an application can be made to the Supreme Court under r 68 of the Probate Rules 2015 (SA) for an order to swear to death of a missing person in respect of whose estate a grant is sought where the fact of death is uncertain but there is evidence from which death may be presumed to have occurred; following which the person’s property can be dealt with as a deceased estate.
An applicant seeking a finding that the presumed deceased is dead should provide the following evidence
- A description of the presumed deceased including their age, and circumstances surrounding their disappearance or departure
- The applicant’s belief that the presumed deceased is dead and the basis of that belief, including evidence relevant to the question of whether the presumption has been displaced.
- That extensive searches have been undertaken looking for the presumed deceased including that advertisements seeking information concerning the presumed deceased have been inserted in newspapers, identifying the newspapers utilised, and the result of those advertisements. with no result.
- Extensive enquiries seeking information regarding the presumed deceased’s whereabouts with no response received.
- That persons expected to receive communication from the presumed deceased have had no contact with from them since their disappearance – including whether any letters have been received from the presumed deceased since their disappearance or departure and, if not, the last date of communication.
- That investigations and enquiries have been made by the relevant authorities resulting in the presumed deceased being listed as a missing person.
- Whether the presumed deceased died testate or intestate. If intestate, the application should state the names of the next of kin and of the potential heirs; if testate, the will should be filed.
- Particulars of the value and nature of the estate of the presumed deceased should be ascertained.
Other matters of relevance may also be deposed, and a failure to establish any of these matters will not necessarily defeat the application.”In Re Westover (1987) 139 LSJS 115
Ryan Chambers (“Ryan”) travelled to India with his friend John Booker (“John”) in June 2005 checking in to a yoga and meditation retreat in Rishikesh, in India’s northern state of Uttarakhand, on 18 August 2005. Following the evening meal on 23 August 2005, Ryan went to his room in the retreat adjacent to John’s room.
The next morning Ryan was not in his room, but John found Ryan’s wallet, passport, and other personal items he usually carried on his person.
John then continued the search but when he hadn’t found Ryan he called Ryan’s mother Di to let her know he could not find Ryan. John, then notified the Laxman Jhulla police who commenced enquires in the district to find Ryan.
Di reported Ryan’s disappearance to the Department of Foreign Affairs and Trade (“DFAT”) on 25 August 2005 and the following day Ryan’s father, Geoffrey Chambers (“Jock”), travelled to Rishikesh to assist with search efforts to locate Ryan. On about 4 September 2005, Ryan’s brother, Jarrad and John’s father, Stewart arrived in India to assist with the search.
Despite the Chambers family searching extensively over many years, Ryan has not been seen or heard of since 24 August 2005.
Jock made an application on 4 September 2020, to swear the death of a missing person in respect of whose estate a grant is sought – where missing person has not been seen or heard of since 24 August 2005 under r 68 of the Probate Rules 2015 (SA).
In granting the order the Court was satisfied that the presumption of continuance of Ryan’s life had been displaced giving rise to the presumption of his death – inferring that Ryan died on or since 24 August 2005.
The Court accepted that following extensive enquiries and searches there was no indication that Ryan is still alive and Ryan’s bank account has remained untouched since his disappearance. Additionally, no information concerning Ryan’s disappearance has been provided following investigations by his family, the Indian police, and DFAT.
The Court was satisfied that the presumption that Ryan was alive had been displaced giving rise to the presumption of his death and directing the
- Registrar of Births, Deaths and Marriages under s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), to register the death of Ryan as having occurred on or since 24 August 2005, with the cause and place of death being unknown.
- Registrar of Probates to issue a grant following an acceptable application for letters of administration by Ryan’s parents