In NSW, there is a legal definition that identifies when, in fact, a person has died. Section 33 of the Human Tissue Act (NSW) 1983 provides:
When death occurs
For the purposes of the law of New South Wales, a person has died when there has occurred:
(a) irreversible cessation of all function of the person’s brain, or
(b) irreversible cessation of circulation of blood in the person’s body.
Once death is proved, a death certificate may be issued. The death certificate identifies the deceased, the date of death and the cause of death if it is known.
In some circumstances, however, it is not possible to apply the definition above to prove that a person is deceased. If a person is missing, for example, it is not possible to declare that the legal definition of death has been satisfied. This has consequences for the deceased’s assets and what may constitute their deceased estate.
As death must be proved as a question of fact, an executor of a missing person’s will is often placed in a difficult position. Until a person is proved deceased, their bank accounts and other assets are generally unable to be dealt with. Insurance policies and superannuation funds may also be unable to be claimed absent evidence of death.
To address the possibility that a missing person may in fact be deceased, the Probate and Administration Act (NSW) 1898 allows the Supreme Court of New South Wales to apply a presumption of death subject to certain evidence being provided. As a general rule, if a person has not been seen or heard from for a period of 7 years by people who would normally be in contact with the missing person, the Court may apply a presumption of death and grant the executor authority to administer the estate. Certain situations may give rise to a presumption of death due to the manner of disappearance, and if the circumstances warrant it, the Court may find it unnecessary to require the full 7 year period to pass.
A tragic example of this issue is the missing Malaysian Airlines flight, MH370. The flight disappeared in March 2014 en-route from Kuala Lumpur to Beijing with 239 passengers and crew on board. You can read our previous blog on MH370 Compensation information.
Recently, the Supreme Court of Western Australia was asked to review an application brought by the wife of a man who was on flight MH370 (Re Paul Allan Weeks; Ex Parte Weeks  WASC 25). The wife sought leave to swear to the death of her husband, which is strictly speaking not the same as seeking a declaration that a person is presumed to be dead.
What evidence was used
Evidence was provided that the wife drove her husband to the airport in Australia and he boarded a flight to Kuala Lumpur. Other evidence included photographs from CCTV footage at the Kuala Lumpur airport where the husband was shown to be at the screening point near the boarding lounge for flight MH370. The Registrar of the Court was satisfied that on the available evidence, the husband boarded flight MH370. The notoriety of the disappearance of the plane and its occupants was also noted such that there is now no hope of finding any survivors. The conclusion reached by the Registrar was that all on board the flight must be presumed to be dead.
Court granted leave
Leave was granted to the wife to swear to the death of her husband despite there being no body and 7 years have not yet elapsed that would otherwise give rise to a presumption of death.
The husband was one of 6 Australians on board flight MH370. At some point, the tragic task of administering those person’s estates will involve an application to the Court seeking a declaration that there is a presumption that those persons are, in fact, deceased.
Please visit our Wills and Estates services section for more details.