The Great Vanishing Act: applications for leave to swear a death To quote the time-travelling WW2 nurse Claire Beauchamp Randall Fraser from the genre-mashing book and television series Outlander, “People disappear all the time. Young girls run away from home. Children stray from their parents and are never seen again. Housewives take the grocery money […]
To quote the time-travelling WW2 nurse Claire Beauchamp Randall Fraser from the genre-mashing book and television series Outlander, “People disappear all the time. Young girls run away from home. Children stray from their parents and are never seen again. Housewives take the grocery money and a taxi to the train station. Most are found, eventually. Disappearances, after all, have explanations… Usually.”
Most are found she says. But for those persons who can’t be, at what point can they legally be presumed dead?
When a person is missing, is believed to be dead but no body has been discovered, a Death Certificate cannot be issued by the Registrar of Births, Deaths and Marriages. A Death Certificate is evidence that a person has died and is required to be exhibited to the application for a grant of probate or letters of administration. Without a Death Certificate, the Court cannot begin to consider an application for probate without having first determined an application for leave to swear the death of the missing person.
In the 17th, 18th and early 19th centuries, the English and Scottish Courts opined that “the state of things must, from their very nature, suffer a specific change after the lapse of a certain period” and that, “although no term can be fixed as an ultimum tempus” of the duration of a human life, there is the “extreme infrequency of life beyond a century.” The Courts acknowledged a presumption of the continuance of life and the civil law adopted the period of 100 years as the timeframe at which the presumption of life was extinguished.
However, the 100-year presumption was not a hard-and-fast rule and there are traces of the Court’s recognition of a shorter time being sufficient to rebut the continuance of life presumption. While Lord Coke previously appeared to go rather off-script when he found that it was a “common intendment” that a man shall die within five thousand years. Lord Hale, in 1672, slightly lowered the generally-accepted 100-year period to 99 years.
In two proceeding matters the Courts considered that 80 should be the appropriate time to lapse before death could be presumed, but held that 60 years would still be too soon.
In the 1732 matter of Benson v Olive, the Court of Exchequer refused to read into evidence a deposition of a witness examined in 1672, 60 years before the trial in question, as there was no proof that the deponent was dead. However, the Court noted that if proper searches and enquiries had been made to no avail, the Court would have admitted the deposition considering the amount of time that had elapsed.
It can be said that during this period, a long absence rebutted the presumption of the continuance of life and was circumstantial evidence from which a Court or a jury could infer that death had befallen a person. It appears that as the Industrial Age endured and the ability to communicate became quicker and easier, the smaller the time that had to elapse before the a Court would find that presumption was rebutted.
It is a commonly held belief that the law provides that the death of a person can only be presumed if that person has been missing for seven years without tidings. While this is not quite the case, this assumption is not without some merit.
The presumption of death after a 7-year period a developed from the enactment of two statues by the English Parliament in the 17th century. The first was an Act colloquially known as the Bigamy Act, passed in or around 1603. This Act restrained all persons from marriage until their former wife or former husband was dead. However, it did provide an exception: “neither this Act, nor anything therein contained, shall extend to any person or persons whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself the one from the other by the space of seven years together, in any parts within his Majesties Dominions, the one of them not knowing the other to be living within that time.”
The second statute passed in 1667 (which unfortunately does not have a short title or informal name) stated that regarding certain titles of land, one should be considered deceased after they have been absent for seven years “beyond the seas or elsewhere… in this realm.”
One of the first examples of the Courts adopting the 7-year presumption as a strict rule was the 1805 matter of Doe v Jesson, where Lord Ellenborough, by way of reference to the Bigamy Act and 19 Car. 2, c. 6, held that “the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living.”
By 1835, Lord Denman made it abundantly clear that the 7-year presumption was merely a starting point for a Court when he asserted “that nothing could be more absurd than that there should be a presumption of life or death, without reference to the age, circumstances, situation of life and common habits of the party. Can there be the same presumption as to a party who is 100, and one who is 35? As to a party who was in good health, when last heard of, and one who was proved to have then had a disorder upon him which was likely, speedily to terminate in his death? It cannot be. It is altogether a question of fact.”
South Australia adopted the 7-year presumption in full and in 1886, the Full Court of the Supreme Court held that where a person has not been heard of for seven years, it will be presumed that they are dead, harking back to the 1805 approach by Lord Ellenborough.
By 1897, the Probate Division on England and Wales was content to presume a missing 73-year-old man was dead, two days shy of the 3-year anniversary of his disappearance, as searches had been conducted by his family members, advertisements had been published in five newspapers, the register of deaths had been searched and the local police communicated with, all to no avail. In this matter, the Court found that despite the short passage of time since the man’s disappearance, the inquiries made were sufficient to satisfy the Court and the application to depose the death was granted.
With 1937 came the leading High Court decision of Axon v Axon, which developed the principle that there is no presumption that death occurred at any particular time before the proceedings, even if the proceedings take place some time after the seven-year period has lapsed. The presumption is only to the effect that, at the time of the proceedings, the individual is presumed to be dead.
In the 1987 South Australian matter of Westover, Legoe J articulated that the presumption of death would be better defined as the displacement of the presumption of continuance of life: “The mere fact that a person has not been heard of for seven years does not itself raise any presumption of fact. But if circumstances exist such that a particular person should have been heard of within that time then the presumption of continuance of life which is the only presumption which the law makes in such circumstances may be displaced.”
In the 1996 New South Wales matter of Howard, Cohen J held that where a missing person had a reason for not communicating with persons who would be likely to hear from them, such as a spouse who had rights for maintenance against the missing person, or someone who jilted their betrothed the night before the wedding with a suggestion they were involved with someone else, the fact that there had been no communication from the missing person did not give rise to a presumption of death.
Cohen J further found that a person seeking the orders is not required to prove that the missing person’s absence is without a reasonable explanation, that in order to raise the presumption of death, enquiries appropriate to the circumstances should be made, that there is no presumption of death without issue or of death unmarried, and finally, that the onus of establishing the presumption of death lies with the applicant and is found on the balance of probabilities.
Applications seeking the Court’s permission to swear a death are made by originating summons to the Registrar of Probates, pursuant to rule 68 of the Probate Rules 2015 (SA).
The starting point in the Court’s analysis of an application for leave to swear a death is that if it can be shown that a person was alive at a particular time, it will be inferred that the person is still alive at a later date when, having regard to the circumstances, it would be reasonably likely that they would be alive. In Westover, and by way of reference to Mortimer on Probate Law and Practice, Legoe J helpfully set out what matters must be addressed in the affidavit supporting the application to rebut this inference:
(1) The missing person’s description, age, their circumstances, and the circumstances surrounding their disappearance,
(2) The applicant’s belief that the missing person is dead and the basis for that belief,
(3) The extent of the searches that have been undertaken, such as whether advertisements have been published calling for information relating to the whereabouts of the missing person,
(4) Whether persons who would expect to receive communication from the missing person has had any contact and, if not, the last date of communication,
(5) Details of the inquiries made by police and other authorities,
(6) Whether the missing person had life insurance,
(7) Whether there are any suspicious circumstances surrounding the death, and
(8) Whether the missing person had a will and if not, the names of persons entitled to benefit from the estate upon the missing person’s intestacy.
In addition to Legoe J’s list, pursuant to Cohen J in Howard, the marital status of the missing person and the searches conducted to ascertain whether the missing person had children should also be detailed in the supporting affidavit.
Whilst seven years generally needs to pass before the presumption of death arises, depending on the specific factual circumstances of the matter, it may not be necessary for this length of time to lapse before an application should be filed.
Pursuant to s 21(1)(b) of the Coroner’s Act 2003 (SA), the Coroner may hold an inquest to ascertain the cause or circumstances of the disappearance of a person from any place within SA that the person would ordinarily reside or the disappearance of a person from, or within South Australia. Pursuant to s 25 of Coroner’s Act 2003 (SA), the Coroner’s Court must, as soon as practicable after the completion of an inquest, give its written findings setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.
When a deceased’s body cannot be located, the Coroner will not make a finding as to the cause of death, meaning no Death Certificate can be issued by the Registrar of Births, Deaths and Marriages, leading to an application to the Supreme Court for permission to swear a death.
In the Estate of Bollen [2019] SASC 197
On Boxing Day 2015, Glenn Bollen and his friend, Mark, took Glenn’s new boat out in unfavourable weather conditions near Beachport to check on some craypots. The boat capsized and Glenn and Mark were thrown into the water. Glenn was washed under the boat and Mark last saw Glenn floating with his arms outstretched and his head facing down. There has been no reported sighting of Glenn since that time and his body was never recovered. SAPOL, assisted by the SES and local private fishing vessels were involved in a thorough marine, air and land search to try to find Glenn. The search was called off on 3 January 2016.
Glenn’s two Westpac bank accounts had not been accessed since the day he disappeared, nor any Medicare claims or claims against the Pharmaceutical Benefits Scheme in Glenn’s name had been made. The SAPOL investigating officer found no evidence nor received any information to indicate that Glenn did not die due to drowning at Beachport on 26 December 2015 as a result of the marine accident. The officer also ruled out any suspicious circumstances.
Glenn’s disappearance was reported to the Deputy Coroner on 31 December 2015 but as Glenn’s body was never located, the State Coroner could not determine a cause of death.
Finally, Glenn’s partner and parents had not seen or heard of Glenn since Boxing Day 2015.
Her Honour Justice Bampton was satisfied, based on the evidence provided, that Glenn drowned at sea near Beachport on 26 December 2015 and granted leave to the applicants to swear his death.
In the matters of In the Estate of Green where a man accidentally drowned in 2017 off the coast of the Eyre Peninsula, and In the Estates of Palombo and Scarfo where, in 2014, two men went fishing not far from Cape Jervis and drowned, the same evidence was provided to the court as in Bollen, satisfying the Court that the Westover requirements to rebut the presumption of the continuation of life had been established. Both matters resulted in leave being granted to swear the deaths of the missing men.
In the Estate of Chambers [2023] SASC 34
The most recent presumption of death matter is the matter of Chambers. Ryan Chambers, a 21-year-old man from Mount Gambier travelled to India with his friend, John, in 2005. When staying in an ashram in the Himalayan foothills, not far from the river Ganges, John woke up one morning to find Ryan gone and his belongings abandoned.
Extensive searches were conducted by the local authorities with the support of the Department of Foreign Affairs and the Australian High Commission to no avail. Ryan’s family travelled to India twice in 2005 and once again in 2011 to try to find a trace of him. Missing person posters depicting Ryan were circulated throughout the country and Coca Cola attached the posters on their delivery trucks and crates. All these searches proved unsuccessful.
The applicants, Ryan’s parents, deposed to Ryan coming from a loving family, having no enemies, and having no reason to sever all contact deliberately or voluntarily with his loved ones. Ryan had no financial difficulties but did not have any trade or language skills that would have allowed him to easily live independently in India. His bank accounts have gone untouched since the day he disappeared. No one in Ryan’s family or friendship circle have heard from Ryan since the day he vanished, despite previously regularly being in touch via text, email and phone calls whilst in India. After 18 long years with no sign of Ryan, the applicant’s sought orders from the Court to permit them to swear Ryan’s death.
Her Honour Justice Bampton was satisfied by the evidence that the presumption of the continuance of Ryan’s life had been displaced and gave rise to the presumption of his death. Her Honour ordered that Ryan’s death may be sworn to have occurred on or since August 2005, that the Registrar of Births, Deaths and Marriages register Ryan’s death as having occurred since August 2005 with the cause and place of death being unknown, and upon the applicant’s making an application for a grant of letters of administration in a form acceptable to the Registrar of Probates, directed the Registrar to issue the grant.
For more information on this article contact:
Solicitor
e: eramsay@adelta.com.au
p: 8415 5018
Solicitor
LLB(Hons), BMedia, GDLP
The proud daughter of a hardworking farmer-turned-truck driver, Elyse grew up drenching sheep and reaping crops on the family farm on the Southern Yorke Peninsula. She completed a Bachelor of Laws with honours, a Bachelor of Media and GDLP at the University of Adelaide. She was admitted to practice in 2020. Elyse began her legal career at the Crown Solicitor’s Office before serving as Associate to the Honourable Justice Bampton of the Supreme Court of South Australia. It was during her time with her Honour that she unearthed her passion for estate litigation.
Elyse regularly appears in the Supreme Court in relation to inheritance and estate disputes and represents her clients at mediations. Elyse’s personal experiences inform her empathetic and practical approach to her practice. She is cognisant of the emotional toll of litigation, especially after the loss of a loved one. Elyse prides herself on providing her clients with a thorough understanding of their options and guiding them through the process with compassion.
Elyse practices in the following areas:
Outside of work, Elyse is a keen cross-stitcher, loves a weekend spent visiting her mum on Hindmarsh Island and is on a perpetual hunt for Adelaide’s best bowl of phở.
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