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Presumption of Death (WA)

When a person dies in Western Australia, the Supreme Court can issue a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) so that their estate can be distributed. However, before this can occur, there must be proof that the person is in fact dead. This article outlines the presumption of death and how it is applied in wills and estates matters in WA.

What is the presumption of death?

The death of a person can be satisfied in either of the following ways.

  • Through direct evidence such as the production of a death certificate issued by the Registry of Births, Deaths and Marriages; or
  • Through the presumption that a person has died.

What if there is no death certificate?

If a person has not been seen or heard from in seven years, then the law provides that the person may be presumed dead, if there is no other reasonable explanation for their disappearance. However, the seven-year period can be shortened in certain circumstances. For example, if the person was in a dangerous situation prior to their disappearance.

The onus will be on the person applying for a Grant of Probate or Letters of Administration to establish that the person is deceased. There will need to be sufficient evidence produced from which the death can be presumed. The person applying will need to file an application to seek leave from the Registrar to swear to that person’s death.

Where it is presumed that the person has died, each state sets out its own requirements for a person applying for a Grant.

In Western Australia, Regulation 34 of the Non-Contentious Probate Rules 1967 allows an application for leave to swear as to death to be made to the Registrar. Leave can only be given if the court is satisfied that the person in question has died.

Presumption of death in Re Paul Allen Weeks

This was recently illustrated in Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25. This case involved the estate of Paul Allan Weeks. Paul was on board flight MH370 from Kuala Lumpar to Beijing which disappeared on 8 March 2014.

Paul’s wife, Danica Weeks, applied for Letters of Administration to urgently deal with Paul’s estate assets. The date of the application was less than seven years from the date of Paul’s disappearance on flight MH370.

The court was satisfied that the evidence was that there had been no trace of Paul or any passenger on board flight MH370, and there was no hope of survivors. All passengers on board were presumed dead. The court granted leave to Danica to swear to Paul’s death for the purpose of applying for Letters of Administration to deal with his estate assets.

Presumption of death in Lashko v Lashko

The Supreme Court considered the presumption of death in Lashko -v- Lashko [2011] WASC 214. In that case, Mr Lashko had been missing since mid-1968 and had not been seen or heard from for 43 years. No record of Mr Lashko’s death had been registered, the bank at which he held an account could not locate any accounts in his name (they were paper records, his accounts had presumably become inactive and since closed) and his body had never been found. There was no evidence to suggest that Mr Lashko was going away permanently.

However, there was evidence that Mr Lashko’s belongings in his house remained intact. Mr Lashko had made a will dated 22 November 1958 appointing the Public Trustee as his Executor and leaving his entire estate to his son, Paul Lashko. Paul Lashko sought leave to swear as to death. The court granted leave to Paul to swear as to death and the court also made an order that Mr Lashko was presumed to have died sometime between 1968 and the date of the court order in 2011.

Presumption of death in Puddy v Puddy

The case of Puddy v Puddy [2012] WASC 233 was unique in that it considered whether the victim of a murder was presumed deceased despite a body never having been found although a person had been convicted of the murder. The father of the victim sought an order that his son was presumed dead and sought leave to swear as to his death. The court granted the order and stated, “..it goes without saying when a person is convicted of murder, the alleged victim is dead. The death of the victim is one of the essential elements of the offence.”.

What type of evidence will the court require?

The evidence that the court may require when an order is sought that a person is presumed dead includes the following:

  • the age, physical and mental condition of the person
  • the relationship of the missing person with the applicant
  • the circumstances of the person’s disappearance
  • evidence of any conversations the person had with anyone prior to their disappearance which may shed light on the disappearance
  • evidence from relatives or friends who would ordinarily be in contact with the person
  • copies of newspapers, media coverage and advertisements
  • details of the extent and result of searches by the police, hospitals and institutions
  • enquiries of business, professional bodies or unions or social clubs of which the person was a member
  • whether the person left unusual debts and was insured
  • whether there have been recent operations on bank accounts

If you require assistance with this unique type of application, please contact Armstrong Legal.

Luisa Di Bernardo

This article was written by Luisa Di Bernardo

Luisa is the Accredited Specialist in contested estates and the Melbourne team leader in the contested estates division at Armstrong Legal. Luisa is an experienced wills and estates lawyer specialising in estate litigation. She has represented clients in family provision claims, contested probates, estate administration, probate applications and superannuation death benefit challenges. Her work has taken her to Victoria, New...

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