To obtain a grant of probate or letters of administration, the applicant must establish that death has occurred. Where no death certificate has issued, the death remains an inference to be drawn from all available facts. An applicant hoping to obtain a grant can really only swear to a belief that death has occurred. On an leave to swear to death application, the court is asked for its opinion on whether the material is sufficient to reasonably ground that belief.

There is a common law presumption that where a person has been missing for seven years or more, in circumstances where they would usually have been heard from, and the absence remains unexplained, that it is more likely than not that the person is deceased.[1]

The mere fact of a seven-year absence is insufficient, it is the fact that the absence remains unaccounted for when one would not reasonably expect it to be if the person were alive that forms the basis of the presumption.[2]

An application for LSD can be made prior to seven years, particularly where the evidence shows fairly conclusively that the person has met their demise.[3]

Rule 34 of the Non-contentious Probate Rules 1976 (WA) provides that ‘an application for leave to swear to the death of a person shall be made to the Registrar by originating motion and shall be supported by an affidavit setting out the grounds of the application and particulars of all policies of insurance on the life of the person the subject of the application’

In the case of Re Bennett [2006] QSC 250; on 16 May 2006, an application for leave to swear a death was brought by the de-facto partner of the Deceased. The Deceased was a professional diver. On 15 March 2004 the Deceased was performing a salvage dive with his diving buddy, Ronald Loss, in South Korean. Mr Loss witnessed the Deceased behave strangely during the dive and the two had indicated to each other that they would surface. Mr Loss surfaced but the Deceased did not. A search took place to find him or his body but he was never seen or heard from again. There were two evidentiary materials before the Court:

  1. The affidavit of Mr Loss swearing to all the circumstances and his observation that the Deceased appeared to have become disoriented during the dive.
  2. Reports that the Korean authorities made as to what occurred and the investigations that were undertaken.

This case clearly had not exceeded the presumption after seven years. Therefore, Counsel for the applicant referred to cases where the Court has been prepared to grant leave to swear to the death of a person before the expiration of seven year: Re Purton (1943) QWN 33 and Re Parker (1995) 2 Qd R 617. In Re Purton, the pilot of the Qantas flying boat which left Java in 1942 fleeing the impending Japanese invasion never arrived at his destination and no trace was ever found. In Re Parker, a father and son were fishing from rocks and were washed into the sea in 1992. They became separated and only the son made it back to shore.

Atkinson J was satisfied on the evidence before her and found that it was appropriate for the Court to grant the applicant leave to swear to the Deceased’s death, and it was appropriate that letters of administration upon intestacy be granted to the application subject to the formal requirements of the Registrar.

[1] Puddy v Puddy [2012] WASC 233 (‘Puddy’).

[2] Lashko v Lashko [2011] WASC 241, [6]-[9].

[3] Ibid [11]-[12]; Puddy; Re Bennett [2006] QSC 250; Re Goods of Mathhews [1898] P 17.