The Case of the Missing Body
Before you can administer an Estate, it is essential to be able to prove the death of the Testator (i.e. the person who made the Will). Usually obtaining a Death Certificate from the treating medical practitioner at the time of death is not a difficult process. However, when the deceased is a missing person, the process becomes much more complicated.
Recently, in the case of the Maynard Estate, Mrs Maynard, a widow had to make an application for a Declaration of Death from the Supreme Court of Queensland.
Mr Maynard left his Queensland home on 18 August 2014 to travel unaccompanied to Bali. The evidence indicated that he arrived in Bali and checked into his accommodation, but never checked out and was not sighted again after he left his accommodation on 24 August 2014 to go surfing. On that day, a fragment of his surf board was found by a local dive master. Despite an extensive search, his body was not located. Mr Maynard never contacted his wife, family or friends again, nor operated any of his bank accounts.
For Mrs Maynard to be successful on the application, she had to overcome the presumption that Mr Maynard was alive. The factors that will weaken this presumption include the following:
- The length of time missing (after 7 years the Court is inclined to treat the life as having ended). In this case, pressing financial circumstances of the family did not make it practical to wait for 7 years to pass.
- Any circumstances of danger surrounding the disappearance, including participation in dangerous activities, for example, surfing alone in unknown waters.
The Court can rely on direct evidence (eye witness accounts), circumstantial evidence and inferred evidence.
It is necessary to show that reasonable inquiries have been made by, for example, notifying the Queensland Police Service of the disappearance and making repeated attempts to contact the missing person by phone, email and/or social media networks.
In the case of Maynard, the Court was satisfied as to Mr Maynard’s death. He was, therefore, presumed dead as from the date of the Judgment. As a consequence of the Declaration, Mrs Maynard was then able to obtain a Grant of Letters of Administration upon Intestacy and attend to winding up Mr Maynard’s Estate. The Letters of Administration had to be obtained rather than Probate because Mr Maynard had no Will.
It is, therefore, not always necessary to wait for 7 years to pass before being able to wind up a missing person’s Estate, but to be able to achieve it sooner does require appropriate evidence. The actual evidence will depend on the special circumstances of each case and legal assistance should be sought to enable the case to be properly prepared for the Court.
For more information
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
Liability limited by a scheme approved under professional standards legislation.