Maisel v The National Mutual Life Association of Australasia Ltd

Stacey Robin Maisel sought leave to swear to the death of her husband, Bradford Zaiser Maisel, after his helicopter crashed into waters off Cape Tribulation. His remains were never found despite extensive searches. The court had to decide whether to grant leave for Maisel to swear to her husband's death and whether an application for probate was necessary before the death was sworn. The court found that the circumstances strongly suggested that Bradford Maisel died in the crash. Given the evidence and the lack of any other plausible explanation for his disappearance, the court concluded that it was appropriate to grant the leave sought. The court held that the application for probate could be made subsequently, once the death was formally sworn.

The court considered the statutory framework governing the swearing of death in the context of succession matters. It was necessary to assess whether the circumstances warranted a departure from the usual requirement for a death certificate. The court held that the compelling evidence of the accident and the exhaustive searches that failed to locate any remains provided sufficient grounds to presume death. The court's decision was also influenced by the practical considerations of the case, including the need for the applicant to manage her husband's estate and the public interest in resolving the status of missing persons. Ultimately, the court granted Maisel leave to swear to the death of her husband and reserved her costs for any subsequent application for probate.