Missing person cases can be intriguing for a lot of people. However, they can have a significant effect in estate administration, particularly in respect of their own estates.
So what happens when someone disappears without a trace without anyone knowing where they are? Can death be presumed after a certain period has lapsed? And, most importantly, how do we deal with their estate? The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758 deals with these issues.
Background
- The case concerned the estate of Neil Walter Morison, who went missing in about 1972 after being discharged from the Australian Defence Force for being absent without leave. He hadn’t been seen or heard of since then, nor known to be alive at any time since then. However, no body had been found and there was no other direct evidence proving that he had passed away.
- Neil was one of the beneficiaries for the estate of his late mother and at the time of the proceedings, the NSW Trustee and Guardian was holding his entitlement (amounting to $53,000.00) in trust. He had no other assets.
- The Trustee and Guardian made extensive attempts to search for him via the Births, Deaths and Marriages, Centrelink/DVA, RTA, white pages, Revenue NSW, newspaper notices, national libraries, banks, mobile phone records, email services, Facebook, NSW Police, and the list goes on.
- Neil’s sister filed an application for a grant of administration of his estate on intestacy and on presumption of death under a 40A of the Probate and Administration Act 1898 (NSW).
- At the time of his disappearance, Neil was not married or in a de facto relationship. He also had no children.
Proof of Death: By Inference vs By Presumption of Law
Proof of death by inference means that death can be inferred from circumstantial evidence. In this circumstance:
- A Court has the power to issue a grant of probate or administration despite the absence of a death certificate where it is satisfied that the person in question has died.
- An executor or administrator of the missing person’s estate is not required to wait before they are able to obtain a grant of probate or administration from the Court.
- This is common in cases where a person goes missing (with a body not being found) following a plane crash or natural disaster.
Proof of death by presumption of law requires an executor or administrator for the estate of a missing person to wait at least 7 years before an application for a grant of probate or administration can be made. The requirements are as follows:
- that the missing person has not been seen or heard of for 7 years;
- that the people who would normally expect communication from the missing person (i.e. family) have not heard from the missing person;
- there is no reasonable evidence that the person is still alive; and
- all due enquiries have been made as to the whereabouts of the missing person.
The case shows that proof of death by presumption of law is a fairly high bar to prove. Courts will often approach these cases with a lot of caution as there may be unknown factors which will influence a person to move from his ordinary environment for no apparent reason.
Fortunately, in this case, the Court found that all requirements had been satisfied. A declaration was made that Neil’s death was presumed and a grant of administration was issued to Neil’s sister, offering much needed closure for his family after 50 years.
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