Puddy v Puddy - [2012] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PUDDY -v- PUDDY [2012] WASC 233

CORAM: MASTER SANDERSON

HEARD: 26 JUNE 2012

DELIVERED : 29 JUNE 2012

FILE NO/S: CIV 2040 of 2012

BETWEEN: LAWRENCE EDWARD PUDDY
Plaintiff
AND
CRAIG PUDDY
Defendant

Catchwords:

Probate - Application for declaration defendant deceased - Third party convicted of defendant's murder - No reason not to make declaration

Legislation:

Nil

Result:

Declaration order made

Category: B

Representation:

Counsel:

Plaintiff: Mr J A Robertson
Defendant: No appearance

Solicitors:

Plaintiff: Williams & Hughes
Defendant: No appearance

Case(s) referred to in judgment(s):

Lashko v Lashko [2011] WASC 214
The Goods of Matthews [1898] p 17

MASTER SANDERSON: This is an application brought by the plaintiff, the father of Craig Puddy the defendant, seeking a declaration Craig Puddy is presumed to have died on or about 3 May 2010 and for leave to swear an affidavit for the purposes of an application for probate that Craig Puddy died on or about that date.
This is a notorious case. The State alleged that Craig Puddy was murdered by one Cameron James Mansell on or about 3 May 2010. Craig Puddy's body was never found. The case was tried before a jury between 6 September 2011 and 7 November 2011. Mr Mansell was convicted of murder.
It flows from that decision there has been a finding by a court that Craig Puddy is no longer alive. It goes without saying when a person is convicted of murder, the alleged victim is dead. The death of the victim is one of the essential elements of the offence. Moreover, the standard of proof is beyond reasonable doubt. In other words, it is safe to say beyond reasonable doubt that Craig Puddy is deceased.
There is a general presumption at law when a person has not been seen for seven years, he or she is presumed to be dead. This is one of those so‑called rebuttable presumptions which exist in the laws of evidence. In most cases, when a person has not been seen for seven years or more and an application for a declaration that he or she is dead is made, the starting‑point is the presumption. Generally, a court will then look at all of the evidence to see whether it is consistent with that presumption. In Lashko v Lashko [2011] WASC 214, EM Heenan J dealt with such a matter. His Honour reviewed the authorities and the history of the rebuttable presumption before undertaking an analysis of the facts.
In the Lashko decision, his Honour also referred to a number of cases where leave had been granted to swear to the death of a testator less than seven years after his disappearance. The Goods of Matthews [1898] p 17 is an example. In such a case, an applicant does not have the advantage of the rebuttable presumption and therefore must rely on other evidence to establish the death of the testator.
This case is different from all…

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 Puddy v Puddy

Details

AGLC: Puddy v Puddy [2012] WASC 233
Case: [2012] WASC 233
Decision Date: 29 JUNE 2012

CaseChat Overview and Summary

In the case of Puddy v Puddy, the deceased left a will which was being administered by the plaintiff, who was also the defendant's daughter. The defendant, who was the deceased's son, applied to the court to have a declaration that the deceased was dead, asserting that a third party had been convicted of the deceased's murder. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the conviction of the third party for the murder of the deceased was sufficient grounds to declare the deceased dead, and whether there was any reason to withhold such a declaration. The court was required to balance the principles of finality and certainty in matters of death with the unique circumstances presented by the case.

The court held that the conviction of the third party for the murder of the deceased was a strong indication that the deceased was indeed dead. The court noted that the deceased had been missing for a significant period of time, and the conviction provided a strong inference that the deceased was no longer alive. The court also found that there were no compelling reasons to withhold a declaration of death. The court determined that the interests of finality and certainty outweighed any potential prejudice to the defendant, and made the declaration that the deceased was dead.

As a result of the court's decision, the plaintiff was entitled to proceed with the administration of the deceased's estate, and the defendant's application was dismissed. The court ordered that the deceased be declared dead, and that the plaintiff continue with the administration of the estate as the executor.

Orders