Re Application for Grant of Presumption of Death; Ex parte Jenkins
[2008] WASC 49
•28 MARCH 2008
RE APPLICATION FOR GRANT OF PRESUMPTION OF DEATH; EX PARTE JENKINS [2008] WASC 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 49 | |
| 07/04/2008 | |||
| Case No: | CIV:1244/2008 | 28 MARCH 2008 | |
| Coram: | BEECH J | 27/03/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | VIOLET GEORGINA JENKINS |
Catchwords: | Wills and probate Common law presumption of death Turns on own facts |
Legislation: | Nil |
Case References: | Axon v Axon (1937) 59 CLR 395 Re Benjamin [1902] 1 Ch 723 Re Green's Will Trust [1985] 3 All ER 455 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
VIOLET GEORGINA JENKINS
Applicant
Catchwords:
Wills and probate - Common law presumption of death - Turns on own facts
Legislation:
Nil
Result:
Application granted
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mrs W F Buckley
Solicitors:
Applicant : Shaddicks Lawyers
Case(s) referred to in judgment(s):
Axon v Axon (1937) 59 CLR 395
Re Benjamin [1902] 1 Ch 723
Re Green's Will Trust [1985] 3 All ER 455
(Page 3)
1 BEECH J: The applicant seeks a grant of presumption of death in respect of her brother, Mr Victor Richard Flanagan. The application arises in the context of the applicant's rights and duties as executor and beneficiary of the will of her late father, Mr Neil Walton Flanagan. Mr Neil Flanagan was the father of Mr Victor Flanagan and of the applicant.
2 Probate of the estate of Mr Neil Flanagan was granted to the applicant as executrix on 15 September 1994. Part of Mr Neil Flanagan's estate, and the relevant part for the purposes of this application, was property at 396 Caves Road, Siesta Park, Busselton (the Caves Road property). Mr Neil Flanagan's will granted a life interest in the Caves Road property to Mr Victor Flanagan, and upon his death, the applicant would be entitled to the Caves Road property, assuming that she survived Mr Victor Flanagan.
3 The applicant is presently the registered proprietor of the Caves Road property in her capacity as the executrix of the will of Mr Neil Flanagan. The applicant seeks a grant of presumption of death in respect of Mr Victor Flanagan so that the Caves Road property may be transferred to her in finalisation of her late father's estate.
4 The applicant has not heard from Mr Victor Flanagan since they last spoke in November 1996.
5 Mr Victor Flanagan was married for a period and was divorced in about 1988. In 1994 he commenced travelling on his own. To the best of the applicant's knowledge, by that time there were no ongoing family law proceedings in that all matters pertaining to his divorce had been finalised.
6 Mr Victor Flanagan had one child, a son, from whom he was estranged. Both of Mr Victor Flanagan's parents are deceased, his mother having died in about 1964.
7 The applicant has always had a good relationship with Mr Victor Flanagan. She remained in regular although infrequent contact with him while he was travelling.
8 When he commenced travelling in about 1994 Mr Victor Flanagan decided to give up all material possessions and lead a nomadic life travelling by foot. He travelled around Australia for a period in 1994, and in 1995 he travelled to Papua New Guinea. In about December 1995 Mr Victor Flanagan was arrested as an illegal entrant to Papua New Guinea and was deported back to Australia. (Although of limited evidentiary value, annexed to the applicant's affidavit were two newspaper
(Page 4)
- articles relating to that travel, and which accord with the applicant's understanding of events.)
9 The applicant also understands, and there is material suggesting, that in early 1996 Mr Victor Flanagan canoed back to Papua New Guinea. He told the applicant that he planned to walk from Port Moresby to various other towns in Papua New Guinea. Annexure F to the applicant's affidavit is a letter from the Australian High Commission in Port Moresby (the Commission) confirming that Mr Victor Flanagan also informed them of his intention to walk from Port Moresby to other towns in Papua New Guinea.
10 The last time the applicant spoke to her brother was on 21 November 1996 when he contacted her by telephone from a town called Lae in Papua New Guinea. In that conversation he said that he was heading into remote country and may not be in contact with her for some time.
11 By early 1998, not having heard from her brother for more than a year, the applicant became concerned. She contacted the Commission and an advertisement was placed in Papua New Guinea's Post Courier newspaper on 15 May 1998.
12 On 25 May 1998 the Commission wrote to the applicant. The letter sets out the results of their inquiries, which had occurred at the applicant's request, into Mr Victor Flanagan's whereabouts. The letter advised that there was a possibility that Mr Victor Flanagan had passed away although there was no conclusive proof in that regard.
13 The substance of what the Commission had been told, as set out in its letter, is summarised in par [51] of the applicant's affidavit, in the following terms:
I am informed by the Australian High Commission and verily believe that they were told the following information by Mr Phillip Cullen as set out in their letter to me annexed marked H to this affidavit:
(1) That a Mr Timothy Yongon who provided security for the Timber Producers Marketing Cooperation which is located on the river at Kui Village near Salamau south of Lae first sighted the man believed to be VICTOR.
(2) That a Mr Stanley Nemdeks the security supervisor at the logging camp advised Mr Phillip Cullen the man was Caucasian and was found lying naked in a canoe and this canoe was brought ashore at the logging camp.
(Page 5)
- (3) That on the day after the Caucasian male was found his health began to deteriorate.
(4) That on the second day after the Caucasian male was found the loggers decided to take him to medical facilities in Lae however the male passed away.
(5) The loggers built a casket for the male and took him to Angau hospital in Lae.
(6) Three separate doctors, namely Doctors Theo, Sau and Pital were contacted but there was nothing that could be done.
(7) The body of the Caucasian male was then taken to the morgue and was left there until the morgue was required to bury all unclaimed and unidentified bodies.
(8) The body was neither claimed or identified and details of the body were not recorded.
(9) According to one of the grave diggers a mass grave was dug in November/December 1997 and the remains of the Caucasian male still in their casket were laid to rest there with 16 other unclaimed bodies.
(10) No dates could be given regarding when the Caucasian male was found or the date he died.
14 By letter dated 23 June 1998 the Commission wrote again to the applicant. In that letter, the Commission advised that a man called Mr Joe Grogan had told the Commission that his cousin, Ms Rose Siune, had taken Mr Victor Flanagan in when he was brought ashore at the logging camp. The letter stated that this had occurred on the evening of 6 December 1996. Further, through Mr Grogan as interpreter, Ms Siune said that the man she cared for did not give his name but had said that he had been married but divorced for some years, and had a son who was a police officer in Perth, Australia. Ms Siune was also said to have looked after the man for three days until he passed away.
15 The applicant says in her affidavit that she accepts that the man Ms Siune cared for was her brother, Mr Victor Flanagan, and that he died on about 9 December 1996. She arranged for a headstone to be laid at the grave site in Lae where the mass grave had been dug.
16 To the extent that it is relevant, I would infer from the evidence before the court that Mr Victor Flanagan's son was a police officer in Perth in 1996. However, the evidence of the letters from the Commission is not led to prove the truth of what is said in the letters. For that purpose
(Page 6)
- it would be hearsay. It is led to set out the results of all the inquiries that have been made into Mr Victor Flanagan's whereabouts.
17 The applicant deposes that she has no knowledge of any conversation Mr Victor Flanagan has had with any person that might explain why neither she nor, so far as she knows, anyone else has heard from him. To the best of her knowledge Mr Victor Flanagan had no debts, did not have any insurance, and did not operate any bank accounts. The applicant knows of no reason for Mr Victor Flanagan to disappear or seek to avoid being discovered.
18 The application invokes the common law presumption of death. That presumption applies when it is established on the balance of probabilities that the person in question, termed the propositus, has been absent and not heard of or from by those who might have been expected to hear from him for a period of seven years up to the commencement of the relevant legal proceedings: Axon v Axon (1937) 59 CLR 395. The presumption will not apply where the circumstances reveal a reason why the propositus would not wish to be heard of by other members of the family.
19 In this case the evidence of the applicant is, in my opinion, sufficient to give rise to the common law presumption of death in respect of Mr Victor Flanagan. He has not been heard of by the applicant since 1996. It is, I find, to be expected that he would have been in contact with her if he were still alive. She was one of the very few surviving relatives that he had, and the only relative with whom, up to 1996, he had ongoing contact. On the evidence, there is no reason, financial or otherwise, for Mr Victor Flanagan to have wished not to be heard of for the last 11 years. His final conversation with the applicant evidences an intention on his part to be in further contact with her after he left the remote country which he said he was about to enter.
20 For these reasons the presumption of death arises. There is no evidence that Mr Victor Flanagan was alive during the seven years to November 2003, which would rebut the presumption. Consequently, the presumption that he was at the time of these proceeding no longer alive operates in this case.
21 The effect of the presumption is to give rise to a conclusion that at the time of the proceedings the propositus is no longer alive. There is no presumption as to when the propositus died: Axon v Axon. In particular, it is not presumed that death occurred seven years after the last contact
(Page 7)
- with the propositus. Thus in this case the order would be in terms of a presumption that when these proceedings were instituted Mr Victor Flanagan was no longer alive. Although there is some evidentiary material, not in an admissible form, which suggests that his death occurred in December 1996, I make no findings in that respect.
22 I was invited by counsel for the applicant to make an order declaring Mr Victor Flanagan no longer to be alive. I would not make an order in that form. A declaration does not seem to me to be the appropriate form of order: see Re Green's Will Trust [1985] 3 All ER 455.
23 In many cases, including this case, the object of a grant of presumption of death is to protect the personal representatives in relation to the distribution of an estate. In some cases, questions arise as to whether the propositus survived the testator. In such circumstances an order may be made in the form of the orders made in Re Benjamin [1902] 1 Ch 723, 726:
In the absence of any evidence that X survived the testator, let the trustees of the testator's will be at liberty to divide the share of the testator's estate devised and bequeathed in favour of Y upon the footing that X was unmarried and did not survive the testator.
24 In the present case the applicant seeks to be at liberty to distribute the Caves Road property to herself by way of a transfer of land in finalisation of her late father's estate. It seems to me that the appropriate order would be in these terms:
The applicant be at liberty to administer the will of the late Neil Walton Flanagan on the footing that Victor Richard Flanagan was no longer alive on 12 March 2008.
25 For the reasons given I would make an order in those terms.
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