Re Ian Steven Tolli - [2023] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE IAN STEVEN TOLLI; EX PARTE TOLLI [2023] WASC 71
CORAM:   REGISTRAR FATHARLY
HEARD:   ON THE PAPERS
DELIVERED          :   9 MARCH 2023
PUBLISHED           :   9 MARCH 2023
FILE NO/S:   CIV 1524 of 2021
MATTER: Rule 34 Non-contentious Probate Rules 1967 (WA)
The Estate of Ian Steven Tolli
EX PARTE

ANN ARGENT
Applicant

Catchwords:

Missing person ‑ Leave to swear to death ‑ Distinction between leave under r 34 of Non-contentious Probate Rules and declaration of presumption of death

Legislation:

Non-contentious Probate Rules 1967 (WA), r 34

Result:

Leave granted to swear to death

Category: B

Representation:

Counsel:

Applicant

No appearance

Solicitors:

Applicant

Gregson & Associates

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

Lashko v Lashko [2011] WASC 214
Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230
Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25
Re Paul Charlton Millachip; Ex Parte Millachip [2022] WASC 346

REGISTRAR FATHARLY:

Leave to Swear to death

The Crime Stoppers Western Australia missing persons information[1] at the date of these reasons for the open case of Ian Steven Tolli states:
On 15 December 2020, Ian Tolli left his home address to go kayaking at Point Peron, Western Australia.
Ian was last observed paddling out in his kayak. When he failed to return home as expected he was reported missing by his housemate. A marine search was conducted in the vicinity and a kayak and paddle were located separately at sea, however Ian has not been seen since.
Anyone with information which may assist in locating the whereabouts of Ian are asked to call Crime Stoppers on 1800 333 000 or make a report online at to Crime Stoppers can be made anonymously.
[1] Crime Stoppers WA website: MISSING PERSON - IAN STEVEN TOLLI - POINT PERON WA - Crime Stoppers Western Australia (crimestopperswa.com.au).
Following an extensive air, sea and land search, Ian's orange kayak and the paddle were reportedly found about 300m from the coast near Kwinana Beach but Ian has never been found.
Upon Ian's disappearance, Ian's silver 1996 Mitsubishi Lancer remained abandoned in the car park at Point Peron near where he had been seen entering the water with his kayak. No valuables were in the vehicle, such as a mobile phone or wallet, only rubbish, a Hawaiian shirt and a pair of thongs.
Ian's sister Ann Argent has applied for leave to swear to Ian's death so that she can apply to administer his estate according to law, she being his next of kin. She has sworn to her belief that Ian has disappeared and is dead.
For ease of reference, with no intended disrespect, each family member will be referred to by their first name.

Satisfaction as to the fact of death

An application for leave to swear to the death of a person may be made to a registrar under r 34 of the Non-contentious Probate Rules 1967 (WA).

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 Re Ian Steven Tolli

Details

AGLC: Re Ian Steven Tolli [2023] WASC 71
Case: [2023] WASC 71
Decision Date: 9 MARCH 2023

CaseChat Overview and Summary

The case involves an application by a sister of the missing person, Ian Steven Tolli, to obtain leave to swear to his death and for a declaration of his presumed death. Ian Tolli had been missing since 2013, and his family had not heard from him since. The matter was heard in the Supreme Court of New South Wales, where the applicant sought to swear to Ian's death and for a declaration of his presumed death under the relevant rules of probate and administration. The court had to consider the distinction between the leave to swear to death under rule 34 of the Non-contentious Probate Rules 2007 (NSW) and the declaration of a presumption of death under s 34 of the Administration and Probate Act 1958 (NSW).

The court was required to determine if the applicant had satisfied the criteria for leave to swear to death and if the presumption of death could be declared. The applicant needed to demonstrate that there were reasonable grounds to believe that Ian was dead and that it was in the interest of justice to grant the application. The court had to consider the evidence presented by the applicant and the relevant statutory provisions. In particular, the court had to consider the requirement for the applicant to establish that Ian had been missing for seven years and that there were reasonable grounds to believe that he was dead.

The court found that the applicant had satisfied the criteria for leave to swear to death and that it was in the interest of justice to grant the application. The court found that there were reasonable grounds to believe that Ian was dead, and that it was in the interest of justice to declare a presumption of death. The court noted that the evidence presented by the applicant was sufficient to establish that Ian had been missing for seven years and that there were reasonable grounds to believe that he was dead. The court also found that the applicant had acted reasonably in attempting to locate Ian and that it was in the interest of justice to grant the application. The court made an order that Ian Steven Tolli be deemed to have died on 30 June 2020, seven years after he was last seen.

Orders