In most cases, demonstrating the death of an individual requires not much more than a death certificate – but in some cases, this may not be possible. Where a person goes missing, the anguish of losing a loved one is amplified by the fact that there are a number of requirements that must be satisfied before you can begin to finalise your missing loved one’s affairs.
Obtaining a Death Certificate
In the vast majority of cases, when an individual passes away, his or her death is recorded by the Victorian Registry of Births, Deaths and Marriages through the grant of a death certificate. In order for a death be ‘validly’ recorded, the Victorian Registry relies on one of a number of sources of credible information – this may include doctors, morticians, funeral directors and most other people who are authorised to dispose of human remains.
Where a person is missing, however, obtaining a death certificate becomes significantly more complex. This complexity is made even more burdensome by the fact that one of the major requirements for a grant of probate is a death certificate – the absence of which may leave any attempts to finalise your loved one’s affairs in limbo.
This being said, there are a number of other ways in which the estate of a missing (and presumed dead) individual can be finalised.
Where a death certificate cannot be provided to a Court for the purposes of a grant of probate, two further options are available – demonstrating either an inference of death, or a presumption of death.
An Inference of Death
The Supreme Court has the power to grant probate despite the absence of a death certificate where it is satisfied that, on the balance of probabilities, the person in question has died. While a presumption of death requires that a family wait seven years or more after the date of disappearance, an inference of death allows Courts to bypass this time limit and allow a grant of probate much sooner.
While inference of death may be fairly simple to demonstrate (as in the case of plane crashes or natural disasters), where the circumstances of the death are less clear, the evidentiary burden unhelpfully grows in proportion.
This being said, an inferred death in mysterious circumstances does not in and of itself mean that an application to the Supreme Court will immediately fail. In a 1970s Victorian case , a grant of probate was made on the inference of the death of a hiker who had disappeared while bushwalking in Tasmania. While no specific cause of death could be inferred, the Court held that where there is significant circumstantial evidence that indicated that a death had occurred, an inference of death could, in turn, be granted.
The Presumption of Death
The presumption of death, as previously mentioned, requires that the family of a missing person wait at least seven years before an application for a grant of probate can be made. The usual requirements for a presumption of death application are:
- A missing person has not been seen or heard of for seven years.
- The people who would normally expect communication from the missing person have not heard from the missing person.
- There is no reasonable evidence that the person is still alive.
- All due enquiries have been made.*
* In some circumstances, the grant may be made in the absence of enquiry .
Even though seven years have come and gone after the reported disappearance of a missing person, and all of the other conditions are satisfied, if a reasonable explanation can be provided for a person’s disappearance, the grant of probate or administration may not be permitted. Although this exception might appear to put the presumption of death on shaky grounds, it has only been applied in very exceptional circumstances. In the vast majority of cases, the lapse of seven years is more than enough to satisfy a Court to grant probate.
-  In The Estate of Troedel, David James  VSC 413 (17 October 1974)
-  Chard V Chard  32 All Er 721