PETER DALE HILLS - [2009] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of PETER DALE HILLS
[2009] SASC 176
Judgment of The Honourable Justice Gray
16 June 2009
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - DEATH, SURVIVORSHIP AND ISSUE
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - EVIDENCE - PRESUMPTION OF AND LEAVE TO SWEAR DEATH
Application for leave to swear death - presumed deceased missing for 13 years without any contact with family - whether presumption of continuance of life displaced - whether presumption of death arises - whether fact of death to be inferred from evidence.
Held: application granted - evidence allows inference of death to be drawn - death of presumed deceased may be sworn to have occurred on or since 4 December 1996.
Probate Rules 2004 (SA) r 67 and r 77, referred to.
Axon v Axon (1937) 59 CLR 395; In re Westover (1987) 139 LSJS 115; Hickman v Peacey [1945] AC 304; Chard v Chard [1956] P 259; Watson v England (1844) 60 ER 266; Estate of Howard (1996) 39 NSWLR 409, considered.

In the Estate of PETER DALE HILLS
[2009] SASC 176
Testamentary Causes Jurisdiction
GRAY J

This is a referral of an application for leave to swear death in circumstances where a person is missing, believed dead.
The application is made to the Court pursuant to Rule 67 of the Probate Rules 2004 (SA) with respect to Peter Dale Hills, the presumed deceased. The Registrar has referred the application to a Judge of this Court pursuant to Rule 77 of the Probate Rules.
Where a court is unable to draw an inference of death from facts given in evidence, it may have resort to what has been described as “the presumption of death”. It has been suggested that the presumption of death is more accurately described as the displacement of the presumption of continuance of life.[1] These presumptions were discussed in Axon v Axon,[2] where Dixon J observed:
When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.
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If, at the time when the issue whether a man is alive or dead must be judicially…

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.

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Details

AGLC: PETER DALE HILLS [2009] SASC 176
Case: [2009] SASC 176
Decision Date: 16 June 2009

CaseChat Overview and Summary

The case of Peter Dale Hills involved an application for leave to swear his death after he had been missing for 13 years without any contact with his family. The primary issue before the court was whether the presumption of continuance of life had been displaced, and if so, whether a presumption of death arose based on the evidence. Furthermore, the court had to determine whether the fact of Mr Hills' death could be inferred from the evidence presented.

The court examined the circumstances surrounding Mr Hills' disappearance, including his history of schizophrenia and the likelihood that he would have been suicidal without his medication. The evidence showed that Mr Hills' car was found abandoned, and numerous searches and enquiries had failed to locate him. Additionally, there had been no communication from Mr Hills or any access to his estate, including his insurance or superannuation policies. The court also noted the opinion of Dr Wright, who had treated Mr Hills for schizophrenia, indicating that he was likely to have become suicidal if he ceased taking his medication. Given these circumstances, the court concluded that the presumption of continuance of life had indeed been displaced, and the evidence sufficiently supported a presumption of death.

In light of the evidence presented, the court found that Mr Hills' death could be inferred to have occurred on or since 4 December 1996. The court was satisfied that the evidence was of sufficient quality to draw this inference and granted the application for leave to swear his death. The final order allowed Mr Hills' death to be sworn to have occurred on or since 4 December 1996.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

David Wright acted as medical practitioner for Mr Hills between 18 July 1986 and 5 June 1995. By letter dated 24 March 2009, Dr Wright outlined that in the early 1990s Mr Hills was being treated at Woodleigh House for schizophrenia. At that time, he was prescribed Haloperidol, 5mg daily and Cogentin, 1mg at night. Dr Wright expressed the opinion that it was likely that Mr Hills could have become suicidal or had suicidal tendencies if he ceased taking his medication. The mother of Mr Hills had attempted suicide in the past, and on 2 January 1993, he informed Dr Wright that his mother had succeeded in suicide several months previously. Following this, Mr Hills described symptoms of depression. As a consequence of the anxiety and agitation displayed by Mr Hills, Dr Wright referred him to Woodleigh House for treatment. Dr Wright noted that when seen on 10 April 1995, Mr Hills displayed side effects of anti-psychotic medication. Dr Wright last saw Mr Hills on 5 June 1995 when he prescribed an antibiotic for the symptoms of a chest infection.Conclusion Mr Hills disappeared, has not been heard of in almost 13 years and all reasonable enquiries and searches have been carried out without any indication that he is still alive. Investigations by police have yielded no information. Mr Hills’ close family or friends have not heard from him in the intervening years. None of the depositions provided indicate that there was any reason for him not to communicate with those persons.[12] No part of his estate, including any insurance or superannuation policies, has been accessed by him. The evidence indicates that Mr Hills could not function without his medication for schizophrenia. The medical evidence suggests that he was likely to have been suicidal without that medication. Mr Hills’ car was found abandoned and advertisements were placed in a variety of newspapers without any communication from any person in response to those advertisements.[12] cf: Watson v England (1844) 60 ER 266; Estate of Howard (1996) 39 NSWLR 409 at 414 (Cohen J). Having regard to the foregoing, I am satisfied that the presumption of continuance of life has been displaced. I further consider that the evidence gives rise to a presumption of death. Having regard to that presumption and to the nature and quality of the evidence before the Court, I am prepared to infer that Mr Hills died on or since 4 December 1996. I order that the death of Peter Dale Hills may be sworn to have occurred on or since 4 December 1996.

Ratio Decidendi

Legal Principle Established

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