From time to time, there are distressing stories about people who have gone missing and cannot be found, sometimes for years. Sometimes, they are found alive and sometimes they are found to have died. In other cases, they simply remain missing. What happens with the missing person’s estate when that happens?

Presumption of Death

The law in NSW presumes that, in the absence of evidence to the contrary, someone who has been missing without being seen or heard from for 7 years may be presumed to have died. An application can then be made to the Supreme Court seeking leave to swear to the person’s death upon production of sufficient evidence for the court to assert a presumption of death.

When an individual is presumed to have died, but the body cannot be found, an application for a Grant of either Probate or Letters of Administration must be made in order to deal with their assets and liabilities. In addition to seeking an order from the court that the missing person is dead, an executor in such cases will usually have to get special permission from the Court to permit the distribution of the person’s estate. The Court may require security (money) to be paid into the Court as a condition of granting that permission.

This application for permission from the Court will need to set out the facts of the disappearance of the deceased. The Courts consider the following information is relevant:

  • the mental and physical condition of the deceased;
  • the deceased’s familial relationships;
  • circumstances of the disappearance;
  • copies of depositions before any coronial inquiry;
  • evidence of any conversations relevant to the disappearance;
  • evidence from friends and/or family who would ordinarily expect to be in contact with the deceased;
  • copies of missing persons advertisements.
  • the extent and results of searches for the deceased;
  • unusual debts;
  • insurance plans;
  • operation of the deceased’s bank account since the date of disappearance; and
  • reasons that the deceased may have to evade discovery.

Inference of Death

However, in some cases, it may be possible to bypass the requirement to wait for 7 years to ask the court to presume the death. The court can bypass that requirement in cases where it is possible for the court to infer death from the circumstances of the disappearance that it is more probable than not that the person has died. 

An inference of death (as opposed to the post-7-year presumption of death) can be relatively straightforward, for example where the circumstances of a plane crash or other major accident makes the probability of death sufficiently high to infer that the person has died. For example, in a recent case the Supreme Court of NSW was prepared to infer that a missing person had and grant probate in circumstances where the missing person was in a vessel that capsized at sea and no body was recovered despite extensive searches (see the decision of Hallen J in The Estate of Alan Bruce Beeby [2020] NSWSC 1512).

If you are an executor of a deceased estate and you find yourself in a situation where the deceased’s body is missing it is advisable to discuss your concerns with a legal professional. Contact one of our Wills and Estates experts at Craddock Murray Neumann Lawyers.

The law is complex and changes frequently. The law may have changed since this article was published.

Blog author: Angus Verheul