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

1. 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."

1. 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.

1. 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 out the grounds of the application; and

(b)containing particulars of every policy of insurance on the life of the person presumed deceased."

1. In this case, the affidavit of the applicant disclosed that Mr White's life was insured with Zurich Australian Life Insurance Ltd, now Zurich Australia Ltd ("Zurich") for the sum of $225,000 plus the percentage increase in the consumer price index since the policy was first taken out in March 1988.  The applicant was the plan owner and under the terms of the policy, Zurich was to pay "to the plan owner or the executors, administrators or assigns of the plan owner" the benefit specified in the policy "on the death of the life insured prior to the benefit expiry date".  Zurich, having been served with the application, applied to be made a respondent to the proceedings and an order was made accordingly on 22 December 1999.

1. At the hearing, counsel for Zurich submitted that the second and third orders sought in the application were misconceived.  It was said that an order giving the applicant liberty to presume the death was meaningless, as no consequences would flow from such an order, the correct form of order being as set out in par1 of the application.  As to the Registration of Births and Deaths Act 1895, s35, it was said that this "appears to be a permissory section, enabling a death to be registered beyond the time limited by s29 of the Act, namely twelve months", and had no relevance, as neither the fact of, nor date of death was the subject of the proceedings.  Having heard these submissions, counsel for the applicant advised me that the applicant did not persist in seeking the second and third orders referred to in the application.  Accordingly, the sole matter for my consideration is whether or not the applicant should be given leave to swear to the death of Mr White so as to enable her to obtain probate of his will.

1. I point out at the outset that an order granting leave to swear to the death made upon a presumption arising from disappearance for seven years provides no assistance as to the date of death.  The presumption is simply that the person died at some time during the seven year period.  Re How's Goods (1858) 1 Sw & Tr 53. The onus of proof of death at any particular date is on the person to whose title the date is essential. Lord Blanesburgh, speaking for the Privy Council in Lal Chand Marwari v Mahant Ramrup Gir and Anor (1925) 42 TLR 159 at 160 adopted the expression of principle contained in In re Phené's Trusts LR 5 Ch 139, namely:

"If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential."

1. In order for me to determine the application, it is not necessary for me to assign a date of death should I grant the order sought.  I have not been asked to do so by counsel.  It may be that ultimately proceedings will be instituted by the applicant against Zurich for the life insurance moneys in which an issue may arise as to the date of death if the policy was not maintained throughout the seven year period.  I suggested to counsel for the applicant, before embarking upon the hearing of this matter, that if an action was to be commenced against Zurich for the life insurance moneys, that action might conveniently be heard at the same time as this matter.  That did not occur and so date of death is not an issue before me.  Neither is the fact of death.  The Court, in proceedings of this kind, does not presume death, but gives to the applicant leave to swear to the death.  The report of re Jackson's Goods (1902) 87 LR 747 contains the following:

"Pritchard, for the applicant, said that Mrs Ives had scruples as to swearing that Mr Macintyre was dead and that she was the next-of-kin. Seeing that there had been no knowledge of the man's existence for a period of nearly 30 years, the court ought to presume his death.
…

Barnes J pointed out that the court never did presume death, but gave the applicant leave to swear the death, and the applicant then had to swear to the fact.  Parties had to prove their right to a grant and they did not establish their right unless they made the necessary oath.  The true principle in such cases was for the applicant to obtain the leave of the court to swear in his or her belief that a person is dead."

1. Presumably the applicant has a belief that Mr White is dead but she has not said so in her affidavits in support of the application and she must do so before she is entitled to the order sought.  In Re Hurlston's Goods (1898) P 27, Gorelle Barnes J said:

"It is essential in these cases that the applicant should state a belief that the death occurred on or after the alleged date.  The applicant must make a supplementary affidavit containing a statement to this effect.  When this supplementary affidavit has been filed at the registry the order may be made as prayed."

If I make the order sought by the applicant, it will be conditional upon the applicant filing an affidavit stating her belief that the death occurred on or after the date of disappearance, namely 9 April 1992.

1. Plainly, if, on the evidence, a court would, if the issue was before it, presume death and the applicant has stated a belief that death has occurred, an order granting leave to swear to the death should be made.  The circumstances in which the fact of death may be presumed following disappearance for seven years were referred to by Dixon J in Axon v Axon (1937) 59 CLR 395 at 405, as follows:

"The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts. … As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises.  If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead."

1. Provided that there are persons who would, if the missing person were alive, be likely to have seen, heard from or of him, or have learned of his whereabouts, and there is evidence that that has not occurred, and provided that the Court is satisfied that all due enquiries have been made, the legal presumption of death will arise unless there is acceptable affirmative evidence that the person was alive at some time during the seven year period.  This is made clear in the judgment of Sachs J in Chard v Chard [1956] P 259 at 272 where he said:

"My view is thus that in matters where no statute lays down an applicable rule, the issue of whether a person is, or is not to be presumed dead, is generally speaking one of fact and not subject to a presumption of law.

To that there is an exception which can be assumed without affecting the present case.  By virtue of a long sequence of judicial statements, which either assert or assume such a rule, it appears accepted that there is a convenient presumption of law applicable to certain cases of seven years' absence where no statute applies.  That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows.  Where as regards 'AB' there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstances, 'AB' will be presumed to have died at some time within that period.  (Such a presumption would, of course be one of law, and could not be one of fact, because there can hardly be a logical inference from any particular set of facts that a man had not died within 2,555 days but had died within 2,560.)"

1. The only evidence of anyone hearing of Mr White since his disappearance is as set out in the affidavit of Graham Beswick which was read into evidence on behalf of Zurich.  Mr Beswick said:

"2Whilst I lived at St Mary's I knew Mr and Mrs White who operated the St Mary's Supermarket.

3I recall hearing that Mr White had disappeared shortly after this occurred in 1992.  Three or four years later, somebody told me that they had been told that Mr White was or had been seen in Queensland after he disappeared from Tasmania.

4I conveyed this information to my sister-in-law, Katrina Atkins.  My sister-in-law has advised me, and I verily believe, that she in turn told Susan Horne and I was subsequently contacted by Detective Constable Neil McLarty of Launceston police about this information.

5I cannot recall who gave me the information referred to in paragraph 3 of my affidavit.  I believe the information came from somebody in the St Mary's district who knew Mr White, but I cannot be more specific." 

This evidence is too vague and remote for any weight to be attached to it.

1. To consider, who, if anybody, would have been likely to have seen, heard from or of Mr White or learned of his whereabouts had he been alive, it is necessary to consider Mr White's personal circumstances and the circumstances in which he disappeared.  I list the relevant circumstances, none of which were the subject of dispute, below:

1Mr White was born on 25 April 1954 at Box Hill in Victoria.  His father died many years ago.  His mother suffers from severe dementia and is unable to recognise family members.  His mother's second husband died in Victoria in 1994.  Other children in the family were Mr White's brothers (Malcolm, Gavin and Mark), his step-sister (Lorraine Henderson) and his step-brother (Graham Cottee).  He married Susan Horne and by that marriage had one daughter, Emma, born on 10 June 1978.  The first marriage ended in divorce in 1986 and Mr White married the applicant Margarete White in March 1987.  The only child by the second marriage is a daughter, Annika, born 25 May 1990.

2The applicant and Mr White purchased a supermarket business at St Mary's in Tasmania in early 1988.  The supermarket was sold in January 1992 and after loans were paid off, an amount of about $140,000 was left over.  The couple then bought a house in Launceston for about $140,000 and also bought a take-away food business in Launceston for about $160,000, the latter amount being borrowed funds.  Immediately upon taking over the new business, the couple had to purchase stock and pay rent.  An instant cash flow problem occurred.  Cheques were written with insufficient money to cover them.  An overdraft facility to cover the cheques was applied for but refused on 8 April 1992.  On the same day, the couple had an argument about money.

3On 9 April 1992, Mr White had not been seen since early in the day.  His brother, Malcolm, closed up the business and brought the takings home in Mr White's brief case that evening.  The brief case contained a note written by Mr White to his wife and two daughters in the following terms:

"To my dearest Margarete, Emma and Annika

I love you all so very much

You have given me a life time of happiness

I'm sorry that I've not been able to do the same for you.

My own stupidity has led to a situation where things can't go on as before.  The only future I see for you is one without me.

All my love always

Geoff

Margarete,

Please cal Rob Dalgleish.  I'm sure he'll look after everything.

Robert Anderson handles our life-insurance."

Mr Dalgleish was Mr White's solicitor and Mr Anderson was a financial adviser who had arranged the Zurich life insurance policy.  The policy did not contain a suicide exclusion.

4Mr White was last seen driving his Daihatsu van in Launceston on the morning of 9 April 1992.  The van was located four days later on a bush track off the end of Mountain Road at Lilydale.  It was located about 20 minutes walking distance from a road from which it would be about a 30 minute drive to the Bass Strait ferry terminal at Georgetown.  The van was examined by police and found to be clean and tidy with no evidence of blood, trauma, or any item which might have been used by Mr White to commit suicide.  Over the next few days a very intensive search of the area was undertaken by police and volunteers.  On 2 of the days of the search, about 50 police officers were involved.  An area of about six square kilometres around the vehicle was the subject of a search technique involving police officers working in grids, line abreast, 3 - 4 metres apart.  No evidence of Mr White being in the area, other than the discovery of his vehicle, was found.  The officer in charge of the search, Mark Hindrum, said in his affidavit sworn 4 July 2000:

"Whilst with the search and rescue squad with Tasmania Police I have attended a significant number of searches where people have taken their own lives.  In my experience as a member of the search and rescue squad, where a person has driven to a secluded spot for the purpose of taking their own lives, death occurs either in the vehicle or within the immediate surroundings of the vehicle.  I have never seen an instance where a person has driven to a secluded place and taken their own life after walking more than a few meters [sic] from their vehicle."

5Mr White, as an 18 year old, disappeared for 4 - 5 months without contacting any family members.  During his first marriage, he had had at least two affairs, including an affair with the applicant.  Mr White's first wife reported to police that she had seen Mr White in Launceston about a fortnight before his disappearance holding hands with a female.  The description of the female given by Mr White's first wife matched a description of a female who had lived in the St Mary's area at the time the White's owned the supermarket there.

1. It was not submitted that there was any evidence which I should find to be acceptable affirmative evidence that Mr White is still alive.  The submission by counsel for Zurich, Mr Estcourt QC, proceeded as follows:

"… the persons who have been put forward by the applicant as being persons who are likely to have heard from him in the period intervening since 9 April 1992, are not, given the circumstances of Mr White's disappearance, persons who could be expected to have heard from him at all.

As to this last deficiency in the application:

(i)there is no evidence from which it could be presumed in the ordinary sense of the word, that Mr White committed suicide and that all traces of him, his body and his clothes vanished; and

(ii)the evidence pointing to an intentional disappearance which would render it unlikely that Mr White could ever make contact again with his wife, family or friends, is so strong as to prevent the presumption that he is dead from being made.

The evidence pointing to an intentional disappearance comprises:

·    financial and personal pressures on Mr White of great weight;

·    a predisposition to disappear to escape from pressure;

·    a predisposition to infidelity and desertion;

·    a farewell note which is equally consistent with disappearing to start a new life as with suicide;

·    the absence of a body which would have been found on such a thorough search as was made by Tasmania Police;

·    the abandoned vehicle located adjacent to an 'escape route' via Georgetown and Bass Strait.

The totality of that evidence prevents Mr White being presumed to be dead with sufficient confidence to permit Mrs White to swear to his death.

….

·    that Mr White did not commit suicide establishes the alternative of an intentional disappearance;

·    that Mr White disappeared intentionally means that persons who would ordinarily be expected to have heard from him were he alive, cannot be expected to have heard from him;

·    the absence of persons who can be expected to have heard from him and have not done so, prevents the presumption from being made that he is dead."

1. Constable McLarty gave evidence that very extensive police enquiries have been undertaken to ascertain whether or not Mr White is still alive.  Many of these enquiries were repeated about 12 months ago.  There is no record of any activity by Mr White since his disappearance.  The police file shows that on 18 August 2000, the Health Insurance Commission reported that there had been no activity in respect of Mr White since 1991.  A passenger movement check dated 21 August 2000 has no record of him travelling.  In August 2000, records were checked nation-wide to see if Mr White had registered a change of name.  No such record was located.  The affidavit of Officer Deearna Rowe contains the following:

"On 15 August 1994 Constable N M Scott requested all Australian States and Territories to undertake an 'indices search' in relation to Robin Geoffrey White born 25 April 1954.  By indices search I mean a search of the databases maintained in each Australian State and Territory for:

(a)offences committed by people in that State of Territory;

(b)transport authority records such as the issue of driver's licences and the like;

(c)subscribers to instrumentalities providing hydro-electricity supply;

(d)telephone companies' subscribers;

(e)land titles records for ownership of property;

(f)births, deaths and marriages records.

The result of that request was that all Australian States and Territories returned negative results meaning Robin Geoffrey White born 25 April 1954 was not recorded on any such databases.

On 21 January 2000 I requested a further indices search to be carried out by all Australian States and Territories in an effort to locate Mr White.  The result of that request was that I received a negative result from all States and Territories as to Mr White."

The fact that the enquiries made have revealed no record of Mr White is more consistent with him having died than with him simply living apart from his family and friends. 

1. There is no foundation for any suspicion that Mr White disappeared for the purpose of committing an insurance fraud.  Beside the note and the van parked in the bush, he left no evidence of his death.  There is no evidence that he knew of the legal presumption of death following seven years' disappearance.  There is no evidence that the Zurich insurance policy has been kept in force over the seven year period.  The evidence of the existence of the life insurance policy is not sufficient on its own, nor in combination with any of the other evidence to account for there being no trace of Mr White since 1992.

1. The woman who was suspected of having been seen holding hands with Mr White a fortnight before his disappearance was located by the police.  Her affidavit was read into evidence.  She said:

"I do not recollect ever knowing anyone called Robin Geoffrey White whether in Tasmania or elsewhere."

She was cross-examined at length and did not depart from what she had deposed in her affidavit and there was nothing in her demeanour; or in what she said; or in other materials or information presented to provide any basis for disbelieving her.  Counsel for Zurich did not suggest in submissions that she should be disbelieved.  Even if it were to be assumed that Mr White deserted his family, that fact would not account for the absence of records of him since 1992.

1. There was evidence from the applicant, Margarete White; Emma White; and Mr Winter (a long-standing friend of Mr White) that they had not heard from Mr White since his disappearance in April 1992.  This evidence was unchallenged.  In addition, annexed to the affidavit of the applicant's solicitor which was read into evidence without objection, were letters from Mr White's brothers, Malcolm, Gavin and Mark, stating that they had not heard from him since April 1992.  There were letters to the same effect from Mr White's first wife; his step-sister and step-brother; and some former friends of Mr White.  At least in relation to the applicant, Margarete White, and Emma White, I am satisfied that these are persons who would have been likely to have heard from or of Mr White since April 1992 if he were alive.  At the time of his disappearance, Mr White was living with the applicant and his daughters, Emma and Annika and it is obvious from the note he left that he had great affection for his family.  If any of the relatives or family friends of Mr White had seen, or heard from or of him, since his disappearance, it would, in the common course of affairs, have been likely to have been communicated to his wife and children. 

1. I am satisfied that:

1Mr White has not been seen, heard from or of since 9 April 1992, a period of more than seven years;

2his wife and daughter Emma (Annika probably being too young to remember him) would be likely to have seen, heard from or of him during that period were he alive;

3         those persons have not seen, heard from or of him;

4all due enquiries have been made appropriate to the circumstances by the police and the applicant through her solicitors and that those enquiries have not resulted in any evidence (excepting for the vague assertions contained in Mr Beswick's affidavit to which I have no regard) that anybody has seen, heard from or of him since 9 April 1992; and

5there is no acceptable affirmative evidence that he was alive at some time since 9 April 1992.

The facts support a presumption of law that Mr White is dead.  No reason to refuse the grant of leave exists.  It will be 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 that she have leave to swear to the death of Robin Geoffrey White.