In Re Margarete Maria White - [2001] TASSC 7

[2001] TASSC 7

CITATION: In re Margarete Maria White [2001] TASSC 7

PARTIES: WHITE, Margarete Maria, In re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M326/1999
DELIVERED ON:  9 February 2001
DELIVERED AT:  Hobart
HEARING DATE:  13 July, 2 November 2000, 6 February 2001
JUDGMENT OF:  Master Holt

CATCHWORDS:

Succession - Wills, probate and administration - Presumption of death - Leave to swear death.
Probate Rules 1936 (Tas), r20B.
Re Smith (1975) 6 ALR 123; Re How's Goods (1858) 1 Sw & Tr 53; Lal Chand Marwari v Mahant Ramrup Gir and Anor (1925) 42 TLR 159; re Jackson's Goods (1902) 87 LR 747; Re Hurlston's Goods (1898) P 27; Axon v Axon (1937) 59 CLR 395; Chard v Chard [1956] P 259, referred to.
Aust Dig Succession [134]

REPRESENTATION:

Counsel:
             Applicant:  M Chambers
             Respondent:  S P Estcourt QC
Solicitors:
             Applicant:  Shields Heritage
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2001] TASSC 7
Number of paragraphs: 18

Serial No 7/2001
File No M326/1999

IN THE MATTER OF AN APPLICATION BY MARGARETE MARIA WHITE
TO SWEAR TO THE DEATH OF ROBIN GEOFFREY WHITE

REASONS FOR JUDGMENT MASTER HOLT

9 February 2001

Margarete Maria White by originating application filed 23 September 1999, applied for the following orders:

"1   That the Applicant have leave to swear to the death of ROBIN GEOFFREY WHITE.
2    That the Applicant be at liberty to presume that ROBIN GEOFFREY WHITE is now dead having died on a date unknown after 9 April 1992.
3    That under Section 35 of the Registration of Births and Deaths Act 1895 the death of ROBIN GEOFFREY WHITE be registered.
4    That the Applicant's costs of and incidental to these proceedings be taxed on a solicitor/client basis, if not agreed, and paid out of the estate of the said ROBIN GEOFFREY WHITE."

The grounds upon which the application is made are self evident from the affidavits filed in support. The applicant married Robin Geoffrey White ("Mr White") in March 1987. Mr White disappeared on 9 April 1992. Mr White had made a will in which he appointed the applicant to be the executrix and trustee of his will and estate. In order to obtain a grant of probate of the will, the applicant must provide an affidavit of death. The applicant does not know that Mr White is dead, and so she must obtain the leave of the Court to swear to the death:

"This practice no doubt evolved in order to help and protect the executors who, without this leave, could not truthfully swear to the death of the testator as required by the common form procedure and who, if they did so swear without leave might be committing perjury." Re Smith (1975) 6 ALR 123.

The Probate Rules 1936, r20B provides:

"20B An application for leave to swear to the death of a person shall be made by summons to a judge and shall be supported by an affidavit ¾
(a)setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading In Re Margarete Maria White

Details

AGLC: In re Margarete Maria White [2001] TASSC 7
Case: [2001] TASSC 7
Decision Date: 9 February 2001

CaseChat Overview and Summary

Margarete Maria White applied for leave to swear to the death of her husband, Robin Geoffrey White, who disappeared on 9 April 1992. In order to obtain a grant of probate of his will, she must provide an affidavit of his death, but as she does not know that he is dead, she must obtain the leave of the court to swear to the death. The court had to decide whether the applicant should be granted leave to swear to the death of Mr White so as to enable her to obtain probate of his will.

The court considered the evidence and found that there was no acceptable affirmative evidence that Mr White was alive at any time since his disappearance. The court also found that the applicant and her daughter would have been likely to have heard from or of Mr White during that period if he were alive, but they had not. The court was satisfied that all due enquiries had been made, appropriate to the circumstances, and had not resulted in any evidence that anybody had seen, heard from or of Mr White since 9 April 1992. The facts supported a presumption of law that Mr White was dead, and the court ordered that upon the applicant filing a supplementary affidavit containing a statement of her belief that Mr White died on or after 9 April 1992, she have leave to swear to the death of Robin Geoffrey White.

Orders