Re Heynatz

[2006] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

Re Heynatz [2006] QSC 173

PARTIES:

JEANNIE NEELIA-HEYNATZ

(applicant)

FILE NO:

BS4940 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 June, 6 July 2006.

JUDGE:

Wilson J

ORDER:

1.    Jeannie Neelia-Heynatz be at liberty to swear to the death of Kenneth John Heynatz late of 70-72 Laurel Drive, Morayfield in the State of Queensland as having occurred on or since 8 June 1998.

2.    That the costs of and incidental to this application, including reserved costs, be reserved to the hearing of the application for the grant of probate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – EVIDENCE – PRESUMPTION OF AND LEAVE TO SWEAR DEATH – where testator lost at sea – where there is more than one executor – whether leave to swear death should be granted

COUNSEL:

R Myers for the applicant

SOLICITORS:

Nicol Robinson Halletts for the applicant

1. This is an application made by Jeannie Neelia-Heynatz for leave to swear to the death of Kenneth John Heynatz.  The applicant and Kenneth John Heynatz were married on 27 June, 1972; a decree nisi of dissolution of the marriage was made on 28 September, 1993, and it became absolute on 29 October, 1993. 

1. Mr Heynatz made a will on 25 August, 1994, by which he appointed the applicant and Elizabeth Dawn Driffield to be the executrices. 

1. Mr Heynatz owned a 12 metre yacht called the "Transgression". He was an experienced sailor.  He embarked on an around the world sailing trip completing the first stage in January 1997. 

1. At 7 a.m. on 2 June, 1998, he left Richards Bay in South Africa.  On board the ship was another person, Penelope Eiloart.  They were expected to arrive in Nosi Bei, Madagascar, on 15 June, 1998.  The last contact with the vessel "Transgression" was at 17:00 hours on 8 June, 1998, that being contact with another vessel the "Elena". 

1. On 11 June, 1998, the Elena sent a "lost contact" message to the yacht "Whimbrel" which was in Richards Bay, and on 12 June, 1998 the same message was sent to one Tony Britchford, a radio operator, in Kenya.  According to French meteorological bulletins, the seas were very rough on the last day of contact. 

1. In July, 1998, French meteorological authorities and military authorities on Europa Island searched the coastline for flotsam that may have come from the "Transgression".  There was also a search by another vessel, the "Libertalia".  Extensive searches were undertaken of the Mozambique Channel, partly funded by the accounting firm KPMG for whom the other person on board (Ms Eiloart) worked. 

1. Aerial searches were undertaken between 16 and 18 July, 1998, of an area of approximately 1,000 square miles.  They were looking for an oil tanker as well as the "Transgression".  There was extensive media coverage of the disappearances.

1. An emergency signal was detected by two aircraft on 25 July, 1998, and the Seychelles Marine Rescue Control Centre was notified of the signal.  Vessels and islands in the vicinity were alerted but the source of the signal was not located.

1. Since 8 June, 1998, nothing has been heard of Kenneth John Heynatz, Ms Eiloart or the yacht "Transgression".  Neither the applicant (his ex-wife) nor his daughters have heard from him, nor has the other executrix Ms Driffield.  He has not used his bank accounts or dealt with any of his property.  (He had property in Townsville, Brisbane and Victoria.) 

1. The applicant wishes to make an application for probate of the will.  The present application has been served on Ms Driffield, who has chosen not to appear.  From an affidavit going to a conversation with a solicitor engaged by her, it appears that she supports the application.  

1. In all of the circumstances, it is appropriate that the applicant be given leave to swear to the death.  Accordingly, I make an order as per the amended draft which I shall initial and have placed with the papers.