For Probate purposes, when is a missing person presumed to be dead?

There is a misconception that, if a person has been missing for 7 years, then that person is presumed to be dead. But an automatic presumption of fact does not arise even if 7 years have passed without any sign of the person in question. In fact, it is possible for a person to be declared dead where that person has been missing for fewer than 7 years. It will depend on the circumstances of each case.

In Western Australia, death is said to occur when there is an “irreversible cessation of all function of the person’s brain” or an “irreversible cessation of circulation of blood in the person’s body”.[1] However, when a person goes “missing” this definition of death cannot be satisfied, even if that person, based on the circumstances, is likely to be dead. So what happens in this situation?

A tragic example of this situation was recently heard in the Supreme Court of Western Australia which related to missing Malaysian Airlines flight, MH370. The flight disappeared in March 2014 en-route from Kuala Lumpur to Beijing with 239 passengers and crew on board. An application[2] was brought to the Supreme Court by Mrs Weeks, the wife of a passenger presumed to be on that flight. The application was brought forward under Rule 34 of the Non-Contentious Probate Rules 1967 (WA) where Mrs Weeks sought leave to swear to the death of her husband.

To make an application for Probate or Letters of Administration, it is crucial to demonstrate that the person whose estate or Will is the subject of the application for the grant is in fact dead. However, without a death certificate, it becomes necessary to obtain a declaration from the Court that a person is presumed dead.

In the Weeks case, Registrar Boyle referred to Tristram and Coote’s Probate Practice (27th ed) at pages 534-535 to summarise the scope and nature of an application for leave to swear to death:

“Where the applicant for a grant cannot swear in his oath to the death of the deceased, and there is no direct evidence of his being dead, but only evidence from which his death may be presumed to have taken place, application must be made for an order giving him leave to swear to the death. Such a presumption may arise: (1) from the disappearance of the presumed deceased at or after a given time, and from the circumstances attending such disappearance, or from his not having been heard of for a prolonged period by those with whom he might reasonably have been expected to communicate; or (2) from his having been on board a ship, which, from its non-arrival in port within a reasonable time, from the absence of tidings of any of those on board, and from other circumstances, is supposed to have been lost at sea; and similarly in the case of a missing or totally destroyed aeroplane.”

In cases such as the Weeks case, “the court does not presume the death of the deceased; it merely gives the applicant leave to swear the death”.

The evidence provided in the Weeks case included:

• That Mrs Weeks drove her husband to the airport in Australia and that he boarded a flight to Kuala Lumpur;
• Photographs from CCTV footage at the Kuala Lumpur airport where her husband was shows to be at the screen point near the boarding lounge for the flight MH370;
• An email received by Mrs Weeks from her husband which was sent by him from Kuala Lumpur airport and “speaks of his onward trip”;
• Various advices from the Malaysian government, Malaysian Airlines and the Australian government (although the Court commented that much of these would be considered as hearsay).

Based on the evidence provided, the Court was satisfied that Mr Weeks boarded MH370 and so held that the applicant, Mrs Weeks, should have leave to swear to the death of her husband despite there being no body and the “7 years” not having passed.

If you have any questions relating to presumption of death or any estate related matters, please contact Kimi Shah on kimi@ryandurey.com.

[1] Section 13C Interpretation Act 1984 (WA)

[2] Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25 (Weeks case)