QLD	6	WA
ACT	9A, 9B, 32A	NT	115, 16, 42
VIC	7-9	TAS
NSW	40A-C	UK
SA		NZ

4.1 A number of jurisdictions have provisions which enable the court to grant probate or letters of administration on the presumption that a person has died, even though it may subsequently be discovered that the person was not dead at that time.

2. NEW SOUTH WALES

4.2 Sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) provide:

40A Evidence or presumption of death

(1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

(2) The provisions of this Act, the Testator’s Family Maintenance and Guardianship of Infants Act 1916, Part 15 of the Conveyancing Act 1919 and the Family Provision Act 1982 relative to a deceased person and of the Real Property Act 1900 relative to a deceased proprietor shall, unless the context or subject-matter otherwise indicates or requires, extend to any person with respect to whom the Court is satisfied in accordance with subsection (1) is deceased.

(3) The provisions of this section shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932, provided that nothing in this section shall affect any action or proceeding decided before or pending at the commencement of that Act.

40B Presumption of death

(1) If a grant of probate or administration is made on presumption of death only, the provisions of this section shall have effect.

(2) The grant shall be expressed to be made on presumption of death only.

(3) The estate shall not be distributed without the leave of the Court. The leave may be given in the grant of probate or administration or by other order, and either unconditionally or subject to such conditions as the Court deems reasonable, and in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that the person will restore any money or property received by the person or the amount or value thereof in the event of the grant being revoked.

(4) The Court may direct the executor or administrator before distributing the estate to give such notices as the Court deems proper in the circumstances, in order that the person whose death has been presumed, if the person is still living, or if the person has died since the date of the grant, then in order that any person interested in the estate may lodge with the Registrar within such time as may be specified a caveat against the distribution. If the Court directs any such notice to be given, the executor or administrator shall not have the benefit of section 92, unless the executor or administrator complies with the direction. If a caveat is duly lodged within such time as may be specified, the executor or administrator shall not distribute the estate until the caveat is withdrawn or removed.

(5) An application for leave to distribute the estate and for directions may be made, and a caveat may be lodged withdrawn or removed, as prescribed by the rules, and the Court may make such order in respect of costs and otherwise as it deems proper.

(6) The provisions of this section, with the exception of subsection (2), shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932, but shall not affect any distribution made before such commencement.

40C Person living at date of grant

(1) Where the Court grants probate of the will or administration of the estate of any person, and it subsequently appears that the person was living at the date of the grant, the Court shall revoke the grant on such terms, if any, with respect to any proceedings at law or in equity commenced by or against the executor or administrator, and in respect of costs and otherwise, as the Court thinks proper.

(2) Proceedings for the revocation may be taken either by the person, or if the person has died since the date of the grant, by any person entitled to apply for probate or administration or by any person interested in the estate.

(3) The Court may at any time, whether before or after the revocation, make such orders, including an order for an injunction against the executor or administrator or any other person, and an order for the appointment of a receiver, as the Court may deem proper for protecting the estate.

(4) The provisions of this section shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932.

4.3 The National Committee considered whether:

(1) provisions dealing with the form of grant and distribution on a presumption of death should be included in the model legislation;

(2) if the model legislation should contain such provisions, provisions to the general effect of sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) should be included.

4. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW

4.4 It was noted that grants pursuant to sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) are made at least 12 times a year in New South Wales.

4.5 However, the National Committee considered that sections 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) are procedural in nature, and were therefore better dealt with in the rules of court of each jurisdiction.

4.6 Further, the National Committee was of the view that a provision to the effect of section 40A of the Wills, Probate and Administration Act 1898 (NSW) would be covered by a provision based on section 6 of the Succession Act 1981 (Qld), which the National Committee has accepted for inclusion in the model legislation.¹

4.7 The National Committee considered it to be unclear whether the term “presumption of death” in sections 40A and 40B of the Wills, Probate and Administration Act 1898 (NSW) covers cases referred to as “inferred death”, as well as what can properly be described as a “presumed death”.

4.8 The National Committee was of the view that it should be clear that the provisions are referring to cases where, although the bodies are not found or recovered, the deaths can be inferred from the surrounding circumstances – for example, where people drown at sea or are lost in a mine explosion – as well as to cases where the court applies the presumption of death.²

Proposal 6

Provisions based on sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

Proposal 7

Each jurisdiction should consider including in its rules of court provisions to the effect of sections 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW).

Proposal 8

A more appropriate term than “presumption of death” should be used, so that it is clear such provisions (wherever located) would cover what the cases refer to as an “inferred death”, as well as to what can properly be described as a “presumed death”.

Proposal 9

It should be made clear that the provisions are referring to a death where the body is not found or recovered.

1. See Chapter 3 of this Discussion Paper in relation to the National Committee’s adoption of s 6 of the Succession Act 1981 (Qld).