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Nobody’s dilemma

The Court requires proof of death before allowing a person to manage their assets.  In a recent case, of Estate of Lyn Burtonwood [2020] NSWSC 715 tragically a man went swimming in the ocean and was not seen again.  The Coroner after an inquest determined that the man had died by drowning.  A death certificate was issued.   A question arose whether due to the lack of finding a body, death was to be “inferred” or “presumed”   This makes a difference legally because if death is only presumed restrictions apply in relation to distribution of the estate.  In this case, the Judge was prepared to find that the evidence was “clearly supportive” of the conclusion, notwithstanding no body having been located, that the deceased had died on a particular day.  The findings of the coroner and the evidence in support pointed convincingly to the deceased having died within a short period of having gone swimming. There was also no evidence of a motive to disappear as would justify the inference that he might have set the stage, elaborately, to give the impression that he had come to his death by drowning. Whilst thankfully these types of situations are rare, we usually include a provision about presumed and inferred deaths in the Wills which we draft just in case.  This is because if a married couple go missing together in similar circumstances, issues arise as to who died first even if the fact of death is accepted.

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