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Case review: Missing person’s estate and the presumption of death

Key points

  • If a person has been missing for several years and it is not known whether they are alive, the Court may presume them to be dead in some circumstances.
  • If the Court finds that someone is presumed dead, their assets may then be dealt with by their next of kin as though they are dead by Court order.
  • Where someone has not been seen or heard from for 7 years, the law will presume that they have died.
court gavel & scales

Summary

In Guo v Gao [2021] NSWSC 1059, the Court had to consider whether a person missing for over 20 was dead and, therefore, whether their family could distribute their estate’s property. The missing person had both real and personal property in New South Wales, and family members were in dispute with how the missing person’s property should be dealt with. 

People disappear – maybe as a result of a tragedy, maybe for other reasons, or, sometimes, for reasons unknown. It may be impossible, at a particular time, to say, with certainty, in relation to a particular person, that she or he, is, in fact, no longer alive. If a person has disappeared, leaving no trace behind, but leaving property, both real and personal, in New South Wales, and it is not known whether she, or he, has died, how is the law to deal with her, or his, assets, deal with representation to be granted of her, or his, estate, and then the distribution of that estate? When, and in what circumstances, can the person, who cannot be located, be presumed dead? These are some of the questions that will need to be answered in the present proceedings.

Facts

The decision deals with a preliminary issue as part of a wider dispute regarding how family members should deal with the estate of a missing person. The parties both agreed that the missing person should be considered dead but required the Court to decide that the missing person was dead as there was no proof that they had died other than that they were missing.

The missing person was born in China and had permanent residency in Australia. She purchased a property in Australia in 2000. The missing person continued to maintain relationships with people in Australia and her family in China. 

The missing person had not been seen since April 2001, notwithstanding investigations by NSW Police. Immigration records indicated that the missing person had not left Australia, nor did any bank or government agencies have any records or transactions for the missing person after this date.

Decision

The Court requires proof of a person’s death before dealing with an application for probate or letters of administration. Proof of death is usually by the presentation of a death certificate. In this case, the Court dealt with the circumstances where the Court can presume that someone has died without a death certificate.

The Court made clear that there is a distinction between proof of death by inference and presumption of death. Proof of death by inference requires evidence from which the Court determines it is more probable that the person has died rather than the person is living. Presumption of death is where there is no evidence of death at all.

In this case, there was “no acceptable, affirmative, or direct evidence” that the missing person was dead. Therefore, the parties had to rely on the presumption of death being 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 a period of seven years up to the commencement of the relevant legal proceedings.” It is for the party seeking to rely on the presumption of death to prove these matters on the balance of probabilities. 

The Court also clarified that there is a difference between a person being missing and not being in communication. The party relying on the presumption must prove that the person has been missing 7 years rather than not in communication with people. If there is a valid explanation for why the missing person has not been in communication with people, the presumption will not arise.

The party seeking to rely on the presumption in addition to proving that the missing person has not been seen, or heard of for a continuous period of 7 years, also has to prove that all due inquires have been made appropriate to the circumstances. It is not enough that the person has been missing for 7 years. Additionally, proactive searches and inquiries need to be made, including through the Police.

In the circumstances of this case, the Court found that the missing person was no longer alive on the presumption of death. The missing person had not been seen or heard of for over 20 years and extensive inquiries had been made by friends, family and the NSW Police.

Further information

Adam has been a member of the Stephen Wawn & Associates' team since 2015. He has experience in litigation including commercial and estate litigation and advises clients on a diverse range of legal issues.

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DISCLAIMER

No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.

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