In New South Wales, the law recognises a presumption of death. This applies when a person has been missing for seven years without any contact. There must be no trace, unless there is evidence suggesting otherwise. In such circumstances, s 40B of the Probate and Administration Act 1898 (NSW) provides the legal basis. It allows declaring a missing person deceased. It also enables the administration of their estate. Under this provision, the Supreme Court can issue a grant of probate or letters of administration. The court does this if it is satisfied by evidence that the person is presumed to have died.
The distribution of the estate can’t occur without the Court’s express approval. This approval must be either within the grant itself or by a separate order. The Court plays a crucial role in this process. The Court has the discretion to demand security as a safeguard. This security can be a monetary deposit paid into Court before authorizing the distribution of the estate.
When someone is presumed dead but there is no body, the process involves a few steps. First, apply for a Grant of Probate. Alternatively, apply for Letters of Administration. This allows the deceased’s legal personal representative to manage the estate. The executor or proposed administrator must obtain the Court’s permission to distribute the deceased’s assets. The Court needs security, like a monetary deposit, to safeguard against future claims.
In considering an application of this kind, the Court examines the circumstances of the disappearance and any available evidence. This includes the person’s physical and mental condition, family relationships, financial and insurance records, and the nature of any debts. It also considers the results of searches and inquiries. It reviews statements from friends or relatives who would usually have heard from them. Together, this information helps the Court decide whether to apply the presumption of death and distribute the estate safely.
The leading Australian authority on this issue is Axon v Axon (1937) 59 CLR 395. It establishes the legal presumption of a person’s death. In this case, Dixon J explained the distinction. It involves proving death by direct evidence. It also involves using circumstantial evidence or relying on a legal presumption. His Honour stated that the Court presumes the person is dead. This is applicable if they have not been seen for at least seven years. This applies when they have not been heard from by those who would typically expect to hear from them. The Court presumes the person is dead if certain conditions are met. This applies only if there is no evidence to the contrary. This presumption is made at the time of the proceedings. Nevertheless, the presumption does not extend to determining the exact time or date of death. It merely establishes that when considering the issue, the person is no longer living.
“… 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 principle has been applied in subsequent cases. Hallen J discussed this in Guo v Guo [2021] NSWSC 1059, at [101-130]. This discussion features a collection of relevant authorities. In the current case, there is no direct evidence of Gary’s death. There is also no circumstantial evidence. There is no indication as to whether he remains alive or not. Thus, the legal presumption of death is the only basis available for concluding that he has died. This presumption is described by Dixon J in Axon v Axon.
The plaintiff, Sheila Francis, was the only child of Gary and Pearl Francis. The plaintiff had not been in contact with her father since around 2001. His whereabouts remained unknown despite extensive efforts to locate him. Her mother, Pearl, died in 2020. The plaintiff applied to the Supreme Court of NSW for
(1) a grant of administration of Gary’s estate on the presumption of death and intestacy, and
(2) A grant of administration of Pearl’s estate on intestacy is required. This is done under sections 40B and 63 of the Probate and Administration Act 1898 (NSW). Intestacy refers to when a person dies without leaving a valid Will. It also refers to when a person leaves a Will that does not dispose of all of their property.
As an alternative, the plaintiff sought a declaration for Gary’s interest in Property 41. He and Pearl owned it as joint tenants. The interest was held on trust for Pearl. This effectively vested full ownership in Pearl’s estate.
Francis v Francis [2025] NSWSC 906, heard in the probate list, was unopposed—Gary neither appeared nor was represented. Gary Francis was born in Australia in 1956. His wife, Pearl Tham, was born in India in 1949 and migrated to Australia via Hong Kong in 1974. The couple married in 1978 and had a daughter, Sheila, the following year. They separated in 1980 and never lived together again, though neither sought a divorce.
After the separation, Pearl worked as an accountant and in 1982 bought a house in St Clair, Sydney (property 41). Pearl couldn’t obtain finance in her own name. Therefore, she added Gary’s name to the title as a joint tenant and co-mortgagor. However, Gary never lived there. Slattery J found that Pearl paid off the mortgage entirely on her own by about 1997.
A Second Family Property: Number 45
After separating, Pearl stayed close to her family. Pearl bought another house with her brother, Louis Tham, and their parents. It was two doors down on the same street (property 45). Members of the Tham family lived there for many years, with Sheila becoming very attached to it.
Pearl and Louis became joint owners following their parents’ deaths. By 2019, Louis had lost capacity. Trustees were appointed under section 66G of the Conveyancing Act 1919 (NSW) to sell the property.
Gary’s Disappearance and the Presumption of Death
Gary’s last known contact with Pearl and Sheila was at his mother’s funeral in January 2001. Following which, he vanished. Property searches revealed that Gary sold the real estate he had inherited in Rosebery in mid-2002. After that, there was no further trace of him.
Extensive searches, including skip-trace investigations, yielded no results. Both of Gary’s brothers, who might have known his whereabouts, have since died.
A person is presumed dead under s 40B of the Probate and Administration Act 1898 (NSW). The rule in Axon v Axon (1937) 59 CLR 395 also supports this presumption. This applies if they have been missing for at least seven years. They must also not have been heard from by those who would normally expect to have contact. The Court applied this presumption in Gary’s case.
The Later Years: Pearl and Louis’s Estates
Pearl died in August 2020 as a joint tenant of property 45. Pearl’s share passed automatically to Louis, who died in Victoria in August 2022, without children and predeceased by his sister.
Under the Succession Act 2006 (NSW) s 129(3), Sheila — Pearl’s only surviving child became entitled to Louis’s interest. This entitlement is dependent on competing claims. A woman claimed to be Louis’s de facto partner. She contested his estate. That dispute and related Victorian proceedings were settled in February 2025 by a Deed of Family Arrangement.
Under that settlement, half of Louis’s share of the sale proceeds of property 45 would be paid to Pearl’s estate. This is after costs. Sheila represented Pearl’s estate in those proceedings.
Sheila’s Position: Living at Number 45
Sheila had been living at property 45 and wanted to stay there permanently. She intended to sell property 41 to finance the acquisition of the other interests under the settlement. Nonetheless, there were still outstanding trustee costs and delays in finalising Gary’s estate.
In November 2024, the trustees for sale obtained a writ of possession against her. When the probate issues later came before the Court in May 2025, the judge stayed the writ. This was on the condition that Sheila list property 41 for sale. She had to do this within three months of being appointed administrator of Pearl’s estate.
The Court’s Decision
Slattery J held that Gary was presumed dead. This decision granted Sheila administration of both his estate and Pearl’s estate. This was done under section 63(b) of the Probate and Administration Act 1898 (NSW). This provision allowed her to manage the estates. It also enabled her to implement the terms of the Deed of Family Arrangement concerning property 45.
The Court also found that Pearl was the sole beneficial owner of property 41. She alone made the mortgage payments. Pearl was responsible for maintaining the property.
Key Legal Principles
Presumption of Death: After seven years with no contact, the Court can presume a person is deceased. This presumption stands if there is no evidence to the contrary.
Joint Tenancy and Survivorship: When a joint tenant dies, the surviving joint tenant automatically inherits the property. This occurs regardless of wills or intestacy.
Beneficial Ownership: If one co-owner contributes all the purchase money, the Court find that person is the true owner. This means they hold beneficial ownership.
Administration of Multiple Estates: Family members’ estates can become intertwined. In such cases, coordinated grants of administration be necessary. This process resolves property entitlements.
Why It Matters
Francis v Francis [2025] NSWSC 906 illustrates the presumption of death interaction. It highlights the practical difficulties families face when a person disappears without a trace. This is particularly challenging where multiple estates, joint tenancies, and family settlements overlap.
Gary and Pearl married in 1978, had Sheila in 1979, separated in 1980, but never divorced. In 1982, Pearl purchased Property 41 as a joint tenant with Gary to secure a loan. Later, she acquired Property 45. This was a nearby property. She made this acquisition with her brother, Louis Eugene Ernest Tham. Her parents, Michael and Sheila Tham, were also involved. Members of the Tham family lived in number 45 for many years. Sheila is very attached to number 45. She now wishes to buy it from the trustees who hold its title.
Purchase of Property 45
Pearl’s parents, Sheila and Michael Tham, passed away in 2005 and 2009. After their passing, ownership of property 45 remained jointly held by Pearl and her brother Louis. In 2019, Louis became legally incapacitated. His trustees applied under s 66G of the Conveyancing Act 1919 (NSW). They sought to have trustees appointed for the sale of property 45. The Court appointed John Mann and Benjamin Dornan as trustees for sale. When Pearl died in August 2020, her interest in property 45 passed automatically to Louis as the surviving joint tenant. The timing of Gary’s death did not affect this.
Louis later died in August 2022 in Victoria, without children. Under s 129(3) of the Succession Act 2006 (NSW), his estate passed to Sheila. She was his niece and Pearl’s only child. This was conditional to any competing claims. Nonetheless, a woman claiming to be Louis’s de facto partner and another party both lodged claims against his estate. These disputes were settled in February 2025. A Deed of Family Arrangement was made. Sheila represented Pearl’s estate. The Victorian State Trustees represented Louis’s estate. Under the Deed, half of Louis’s share of the sale proceeds from property 45 was allocated to Pearl’s estate. This was done after payment of the trustees’ costs.
Sheila had been living in property 45. She hoped to buy out the other interests. She planned to use proceeds from the sale of property 41. Nevertheless, delays in administering Gary’s estate and accrued trustee costs complicated matters. In November 2024, the trustees obtained judgment and a writ of possession against her. When the probate issues came before the Court in May 2025, a stay of enforcement of the writ was granted. This was conditional upon Sheila listing property 41 for sale within three months of her appointment as Pearl’s administrator.
In Francis v Francis [2025] NSWSC 906, Slattery J considered the administration of both estates. He also examined the ownership of the two properties. The plaintiff had not heard from Gary since 2001. His last known act was the sale of real estate in 2002. Searches through various government and financial records revealed no trace of him. Given his absence of over seven years, the Court presumed Gary’s death as of the date of the hearing.
Sheila had discharged the burden of proving the presumption of death. There was no evidence suggesting Gary was alive during the relevant seven-year period. Thus, the Court appointed Sheila administrator of Gary’s estate under ss 40B and 63(b) of the Probate and Administration Act.
Suppose Gary had become the sole owner of Property 41 by survivorship if he had survived Pearl. Sheila was incapable of establishing the order of their deaths. Slattery J made an observation as a result. He noted that s 35 of the Conveyancing Act 1919 (NSW) did not adequately address this uncertainty. He called for law reform.
Slattery J held that Gary’s share in Property 41 was held on a resulting trust for Pearl. This meant it formed part of her estate. This supported Sheila’s alternative claim for a declaration to that effect. It would simplify the transmission of the property and reduce costs. The Court ordered liberty to apply for such a declaration. Leave to distribute the estate under s 40B(3)–(4) requires Court approval before distribution. It also allows notice to be given to potential claimants if the presumed-dead person is still alive.
Concerning Property 45, Pearl’s parents died in the early 2000s. As a result, Louis and Pearl were the surviving joint tenants. Upon Pearl’s death, Louis became the sole owner by operation of the law of survivorship. When Louis died intestate and childless in 2022, proceedings determined his heirs. A family arrangement later divided his estate, with half passing to the beneficiaries of Pearl’s estate.
Gary and Sheila may have survived Pearl. Slattery J granted administration of Pearl’s estate to Sheila but did not decide the ultimate distribution between the two estates. Further applications—like a Benjamin order or leave to distribute under s 40B—are necessary to finalise entitlement and distribution.
Administration of Estates
The Court determined that Sheila is entitled to administer Gary’s estate. She is Gary’s sole surviving next of kin. This entitlement is under the Probate and Administration Act 1898 (NSW) section 63(b). Pearl is Gary’s only surviving child. She is also the sole beneficiary of his estate under intestacy under section 127(1) of the Succession Act 2006 (NSW). Therefore, the Court granted her letters of administration for Gary’s estate.
Pearl died intestate. Since Gary is presumed deceased, Sheila is her sole surviving next of kin. She is also the beneficiary. The Court therefore appointed Sheila as administrator of Pearl’s estate. This empowers her to manage assets. This includes proceeds from property 45 held under a deed of settlement arising from Victorian proceedings.
Determining Order of Death: Gary and Pearl
The key legal issue was whether property 41 passed through Gary’s or Pearl’s estate, depending on who died first. The plaintiff knew Pearl’s date of death (August 2020), but the date of Gary’s is uncertain. The presumption of death does not establish when Gary died, only that he is now presumed dead.
Sheila’s counsel argued that Gary likely predeceased Pearl due to his long absence, but Slattery J found this unconvincing. There was no evidence beyond his disappearance to determine the order of death.
Application of Conveyancing Act 1919 (NSW) s 35 (Presumption of Survivorship)
Section 35 presumes that when two people die in uncertain circumstances, the younger is presumed to have survived the elder. Authorities disagree on whether this applies when presuming only one person’s death.
In the Estate of Keith Hilton Dixon (1969) [1969] 2 NSWR 223, Helsham J made a notable ruling. He held that the section can apply in cases of presumed death.
Nonetheless, in Re Albert [1967] VR 871; Halbert v Mynar [1981] 2 NSWLR 659, Lush J and Waddell J declined to follow Dixon, reasoning that applying s 35 in such circumstances produce anomalies
Later NSW cases reaffirmed this uncertainty. These cases include Public Trustee v Attorney-General (1984). Another case is Application of Morison. There is also Re Morison [2022] NSWSC 1758. Finally, there is Guo v Guo [2021] NSWSC 1059.
Cohen J in Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984) made a suggestion. He said that evidence of health at last sighting should be considered. Such evidence might help infer survivorship. However, such evidence was absent here.
Slattery J concluded that although not aware of the order of death this did not affect Sheila’s entitlement. Under s 127(1) of the Succession Act, property 41 is inherited either way. This illustrates a need for law reform. It is important to make sure that s 35 covers uncertainty in the order of death. This is crucial when the presumption of death is applied.
Alternative Relief and Further Orders
Slattery J noted that Sheila’s appointment as administrator of Pearl’s estate allows for the management of the Victorian property proceeds. These proceeds are from property 45. Additionally, it recognised another pathway. It declared that Gary held his interest in property 41 on resulting trust for Pearl. This simplifies transfer to Sheila and reduce costs. Slattery J granted liberty to apply for this declaration. He also granted liberty for any further directions under the Probate and Administration Act s 40B(3)–(4). This was done before the proceeding directions hearing.
The Court rejected the plaintiff’s counsel’s submission. They inferred that Gary died before Pearl merely because of his long absence. They also considered his lack of contact. The evidence only supported the conclusion that Gary is now presumed dead under the law. It did not support that he predeceased Pearl.
Plaintiff’s counsel further relied on s 35 of the Conveyancing Act 1919 (NSW). This section establishes a presumption of survivorship. Where two people die in uncertain order, there is a presumption the younger survived the elder. Nevertheless, authorities are divided on whether that section applies on the presumption of death only. In Estate of Dixon (1969) WN (NSW) 469, Helsham J held that s 35 does apply to presumed deaths. He reasoned that a presumed death is still a death in law.
“it has been clearly established by the authorities that where
death is presumed as a result of seven years unexplained absence a Court will not, in the absence of evidence, infer that death occurred at or before any particular date; the presumption is limited to a conclusion that at the time of the relevant proceeding the man is dead; Axon v. Axon (1937),59 C.L.R. 395; Re Phene’» Trusts (1870),5 Ch. App.
139; [1861-73] All E.R. Rep. 514, referred to.
(2) Whether a person is or is not a next-of-kin of the deceased is a matter
“affecting the title to any property” (within the meaning of s. 35 of the Conveyancing Act) if the deceased is proved to have left some property and the proceedings in which the question arises touch or concern such property. The words of the section are wide and should not be read down in any way that would restrict their operation; Re Grosvenor; Peacey v. Grosvenor, [1944] 1 All E.R. 81; [1944] 1 Ch. 138,
referred to.
(3) Death which is presumed by reason of unexplained absence is no less a fact because it arises by a presumption of law, and in my view is just as much a death falling within the terms of the section as any other death. I therefore hold that s. 35 includes the case of death presumed from an absence of seven years, where the common law presumption of death applies.
(4) Section 35 is not restricted to commorientes, but is applicable to all cases where deaths occur and there is uncertainty as to the order in which they happened. Hickman v. Peaceu, [1945] 2 All E.R. 215; [1945] A.C. 304,”
Re Albert [1967] VR 875 and Halbert v Mynar [1981] 2 NSWLR 659 declined to follow Dixon J by contrast. They warned that applying s 35 of the Conveyancing Act 1919 in such cases lead to anomalies. Later cases and commentary continue to explore the uncertainty. These cases include Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984). They also include Application of Morison [2022] NSWSC 1758. Another case is Guo v Guo [2021] NSWSC 1059. Additionally, standard texts by Dal Pont and James, Liebhold, and Studdert also discuss the issue.
Cohen J in Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984) made a suggestion. He stated that evidence about the missing person’s health when last seen sometimes assists in inferring survival duration. Specifically, it helps in figuring out who survived longer. Yet, such evidence was unavailable in Francis v Francis [2025] NSWSC 906. As a result, the Court could not conclude through which parent’s estate Sheila ultimately inherits property 41. This uncertainty made no practical difference as Sheila would inherit in either case. Slattery J observed that this uncertainty highlights the need for law reform. It is necessary to guarantee s 35 covers uncertainty in the order of death. This provision should apply where the presumption of death is applied. (at[37])
His Honour also noted that Sheila’s appointment as administrator of Pearl’s estate allows her to manage property 45. It also permits her to manage the trustees under the Victorian settlement deed. Finally, Slattery J indicated another declaration under prayer 7 of the Summons. This declaration states that Gary held his share of property 41 on a resulting trust for Pearl. Offering a more straightforward and cost-effective way to vest the property in Sheila. Liberty is granted to apply. The matter will return to Court on 21 October 2025. Any further orders or directions will be under s 40B(3)–(4) of the Probate and Administration Act 1898 (NSW).
Slattery J indicated that the orders are conditional to the Court hearing further submissions upon the formal final orders reached. The plaintiff should inform the parties to the settlement of the Victorian proceedings of these orders. This will ease implementation of that settlement.