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By: Michael Klatt, Esq.
Mullins Lawyers
Brisbane, Australia

It is commonly thought that it is necessary to wait seven years from the date of a person’s disappearance before the presumption of death arises. Under the common law, this is in fact the case.

Section 6 of the Succession Act 1981 (Qld), however, gives the Court jurisdiction which is very wide. The Court has power to give an executor under a Will liberty to swear to the death of the missing person and grant Probate of the Will notwithstanding that a death certificate cannot be presented. Likewise, if the missing person did not leave a Will, an application for Letters of Administration upon intestacy can be made to a person who applies notwithstanding that there is no death certificate

In a recent decision of Maynard v The Estate of Maynard [2015], Peter James Alexander Maynard's widow sought an order from the court allowing her to swear to his death enabling her to obtain a grant of Letters of Administration upon his intestacy. The Court, of course, had to be satisfied that it was most unlikely he made a Will.

It appeared to the Court that on 18 August 2014, Mr. Maynard left his family home at Castaways Beach in Queensland to travel on a surfing holiday in Bali, travelling by himself.

The evidence shows he arrived in Bali and checked into his accommodation, but never checked out and was not seen again after he left that accommodation on 24 August 2014 to go surfing. On that day, a fragment of his surfboard was recovered by a local dive master, who had sworn an affidavit in Indonesian, the affidavit had been translated and the translation was before the Court.

Despite an extensive search, Mr. Maynard's body was not found. The extent of the searches were thoroughly set out in the wife's material. Mr. Maynard left a wife and three children.

The Court found that at the time Mr. Maynard disappeared there were apparently quite difficult seas and that remnants of his surfboard had been found suggesting a severe impact with a coral reef. He had not contacted his wife, any other member of his family or his friends, nor had he operated any of his bank account since 23 August 2014 and, in those circumstances, the Court was satisfied that his widow should be at liberty to swear to his death.

A grant of Letters of Administration was made to the widow. This then entitled her to administer his estate. The decision did not disclose what assets Mr. Maynard owned, but the Court did find the widow was suffering financial hardship. If Mr. Maynard held a life insurance policy, the grant would allow the widow to claim on that policy following the orders made by the Court and not have to wait seven years to make the claim.

Obviously, whether the Court will grant liberty to swear the death of a missing person depends on the circumstances of each case.

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