Presumption of Death At Law

Neil Morrison was last seen and heard from in 1972.

After the death of his parents, he inherited the sum of $53,000.

In order to deal with those funds it was necessary for someone to represent his estate. However, one of the fundamental requirements of obtaining a grant of probate or letters of administration is proof of the deceased’s death, usually by way of death certificate.

No one had applied for a death certificate in this case. No body was ever found. There was no evidence as to how, when or where the deceased may have died.

In order to establish someone has died, the onus on the person applying for a grant of representation.

Presumption of Death v Inferred Death

Presumption of death is different to inferred death. For example, the passengers and crew of MH370 death could reasonably be inferred despite the absence of a body. In the case of inferred death, there are usually circumstances available to establish to the Court that it is more probable than not that the person has died.

With an application for presumed death, there is no evidence of death or circumstances suggesting death was more probable than not. It is a conclusion a court is required to make on the proof of a number of basic factors, provided there is no evidence that is contrary to the conclusion.

A finding that someone is presumed death does not shed any light of when the person died. Just that at the time the application was heard, the Court makes a finding that the person is deceased at that time.

Searches undertaken

So in the matter of Neil Morrison, it had been some 50 years since he had last been heard from by any friends or family or his employer. Searches were done to ensure there was no electoral roll record, mobile phone or bank accounts in the name of the deceased or other evidence he was alive. Social media searches were also conducted. It was open to the Court only to make a finding that the deceased is presumed dead. The Court cannot make a finding as to when the deceased died, that is whether he survived his parents or not.

The essential matters to establish in order to satisfy the court to make a finding of presumed death, were set out as:

  • That the deceased had not been seen or heard from for a continuous period of seven years or more after he was last seen alive;
  • That there are persons who would be likely to have heard of, or from him over that period
  • That those persons had not heard of or from him
  • That all due inquiries have been made appropriate to the circumstances.

In being satisfied that the person was able to be presumed dead, Hallen J proceeded to issue a grant of letters of representation to the applicant. As separate leave is required for any distribution of such estates, his Honour also made a simultaneous order to enable the distribution of the small estate.

The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758