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 Probate Rules 2015 (SA), r 68 |
Cases Cited: | Axon v Axon (1937) 59 CLR 395 In the Estate of Green [2020] SASC 90 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 in support of the application. The terms of that text message are not necessary to set out, but it included a statement that he loved the plaintiff and a statement that he hated the world and could not live in it anymore. When, about five hours later, the plaintiff saw that text message, she called him on his phone but he did not pick up. Later that morning, she reported him as a missing person. Police conducted searches for him in the Uriarra Village area. In the early afternoon, police located his vehicle in the “Uriarra east car park”, a car park next to a recreation area adjoining the Murrumbidgee River. It was locked and his mobile phone was seen in plain sight. Police searched the area.
Police told the plaintiff on 17 July 2021 that they had been unable to find him. They considered that he may be dead due to the bad weather conditions. They ceased searching on that date.
He has not returned to the family. He has not used the joint bank account that he held with the plaintiff. He has not used their shared email address to send any emails. He has not contacted the plaintiff or any other members of his family.
The plaintiff wishes to obtain a grant of letters of administration and seeks to establish EI’s death by inference by this direct evidence. That is necessary because no death certificate has been issued. This is because EI’s body has not been found. The plaintiff does not wish to rely upon the common law presumption of death because that requires a lapse of seven years: see Axon v Axon (1937) 59 CLR 395 at 405. Reliance upon the presumption is not necessary when the facts establish, even by inference, that the person is deceased. Examples of such cases are given in Re Bennett [2006] QSC 250; 1 ASTLR 199.
Having regard to the evidence of 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, I am satisfied on the balance of probabilities that EI is dead and that he died on 15 July 2021.
The next question is to work out procedurally how effect should be given to that conclusion. The application sought that a declaration be made and that leave be given to use this for the purposes of proving the death of EI. The issue of granting declaratory relief in a case like this was considered by Hallen J in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55]‑[64]. In that case, his Honour made a declaration as to his satisfaction that death had occurred on a particular date. In other cases, there has been a specific court rule allowing permission to be granted for a person to swear to the death of the deceased in respect of whom a grant is sought, for example Probate Rules 2015 (SA), r 68. Thus, in In the Estate of Green [2020] SASC 90, such permission was granted and no declaration was necessary.
In the present case, the grant is likely be dealt with by a registrar of the court. I consider that the appropriate way in which to deal with the issue is to closely follow the provisions of the rules and the statute. I will do that by making an order pursuant to r 3012, the rule pursuant to which the application was made. That permits death to be proved otherwise than by death certificate. Having regard to the proof which was put before me, I will then give a direction to the Registrar that the court has been satisfied for the purposes of s 9A of the Administration and Probate Act that EI died on 15 July 2021.
At this stage, noting the absence of any contradictor or any other party joined to the proceedings, I am not satisfied that I need to make a declaration as was sought in the application in proceeding. In case it emerges that, for some reason unknown to me at this time, it is necessary to have some further relief to give effect to my conclusion, I will make a grant of liberty to apply within a defined period.
It is appropriate that the costs of this application be paid out of the estate.
Orders
The orders of the Court are:
1. I order pursuant to r 3012(3) of the Court Procedures Rules 2006 (ACT) that the death of [EI] may be proved otherwise than by a death certificate.
2. I direct the Registrar that, for the purposes of the originating application dated 21 December 2021 made by [TI] and pursuant to s 9A(1) of the Administration and Probate Act 1929 (ACT), the Court has been satisfied by direct evidence that [EI] is dead and that he died on 15 July 2021.
3. The costs of the application in proceeding dated 21 December 2021 are to be paid out of the estate of [EI].
4. That the applicant has liberty to apply within 28 days for any further order required for the purposes of the application in proceeding dated 21 December 2021.
5. I direct that for the purposes of any publication of these reasons, the names of the plaintiff and deceased be anonymised.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 April 2022 |
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