Re Estate of EI - [2022] ACTSC 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Re Estate of EI
Citation:	[2022] ACTSC 55
Hearing Date:	25 February 2022
DecisionDate:	25 February 2022
Before:	Mossop J
Decision:	See [15]
Catchwords:	SUCCESSION – PROBATE AND ADMINISTRATION – Practice and procedure – application to allow death to be proved other than by death certificate – Court satisfied of death by direct evidence – grant of leave to prove death to be dealt with by the Registrar – costs of the application to be paid out of the estate
Legislation Cited:	Administration and Probate Act 1929 (ACT), s 9A Births, Deaths and Marriages Registration Act 1997 (ACT), s 65 Court Procedures Rules 2006 (ACT), rr 3010(6), 3012 Probate Rules 2015 (SA), r 68
Cases Cited:	Axon v Axon (1937) 59 CLR 395 In the Estate of Green [2020] SASC 90 Re Bennett [2006] QSC 250; 1 ASTLR 199 The Estate of Alan Bruce Beeby [2020] NSWSC 1512
Parties:	TI ( Plaintiff)
Representation:	Counsel T Morton ( Plaintiff)
Solicitors Farrar Gesini Dunn ( Plaintiff)
File Number:	PRO 1048 of 2021

MOSSOP J:

Section 9A of the Administration and Probate Act 1929 (ACT) provides that probate of the will, or administration of the estate, of a person may be granted by the Supreme Court if it is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead.

The usual way in which this is done is by proving that the person has died using a death certificate. Such certificates are evidence of the death: Births, Deaths and Marriages Registration Act 1997 (ACT), s 65. The requirement for a death certificate exists in r 3010(6) of the Court Procedures Rules 2006 (ACT) which requires that any death certificate be annexed to the supporting affidavit for a grant of representation for a deceased estate. However, s 9A of the Administration and Probate Act permits direct evidence of death other than by a death certificate.

This is an application brought pursuant to r 3012 of the Court Procedures Rules. That rule permits the Court, on application, to allow a death to be proved otherwise than by death certificate.

TI seeks a declaration that based on evidence filed in proceedings, EI died on 15 July 2021.

EI was married to the plaintiff on 16 January 2020. He suffered from anxiety and post‑traumatic stress disorder. His first partner had died in tragic circumstances which are disclosed in the affidavit in support of the application, but which are unnecessary to set out.

EI lived with his wife, two of his daughters and his stepdaughter at a house in a suburb of Canberra. They had a comfortable life. At about 12am on 15 July 2021, EI left the property and has not returned. He was emotional and intoxicated at the time of leaving the premises. Shortly after he left, he sent a text message which is set out at [6] of the affidavit…

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.

Keep reading for free

Create a free CaseChat account to read Re Estate of EI and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] ACTSC 55
Decision Date

CaseChat Overview and Summary

TI brought an application under the Administration and Probate Act 1929 (ACT) and the Court Procedures Rules 2006 (ACT) seeking a declaration that EI had died on 15 July 2021. TI was EI's wife and sought to establish his death by inference, as no death certificate had been issued. TI had reported EI as a missing person when he failed to return home on 15 July 2021. Police located EI's vehicle in a car park near the Murrumbidgee River. They were unable to locate EI despite searches. The searches ceased on 17 July 2021, as police considered it likely EI had died in the bad weather. EI had not returned to the family, had not used the joint bank account or email address, and had not contacted any family members. TI wished to obtain a grant of letters of administration. The court had to determine whether EI was deceased and whether a declaration of death was necessary. The court held that EI was deceased on the balance of probabilities and that a declaration of death was not necessary. The court ordered that EI's death could be proved otherwise than by a death certificate and directed the Registrar that the Court was satisfied that EI died on 15 July 2021. The costs of the application were to be paid out of the estate. TI had liberty to apply within 28 days for any further order required. The names of the plaintiff and deceased were to be anonymised for the purposes of publication.
The court's decision was based on the evidence presented, including EI's mental health, the circumstances surrounding the death of his previous partner, the circumstances and condition in which he left the house at about 12am on 15 July 2021, the terms of the text message which he sent to the plaintiff, the location where his vehicle was found, the evidence of searches undertaken by police for him, the evidence of bad weather at the time of his disappearance, his failure to return and the absence of any activity on the joint bank account or email address. The court considered the relevant legislation and case law and followed the provisions of the rules and the statute. The court's order provided a clear direction for the Registrar to follow and granted liberty to apply for any further order required. The court's decision was fair and just, taking into account all relevant factors and evidence.

Orders