Someone disappears. Years go by and they are still missing. There is no message, no letter, nothing to indicate whether they are still alive. No body is found. Families are in limbo. Can their partner legally remarry? When can the missing person legally be declared dead, their will enacted and their assets distributed?
Can someone be declared dead while missing?
The law states a person is presumed to be alive until they are legally declared dead. If no body is found to prove they are dead, neither police nor the coroner can declare a death has occurred. The police investigation must remain open. Nobody has the authority to deal with the person's property and assets.
This usually occurs when a person is swept out to sea, vanishes during mountain climbing or is never found after a natural disaster like a mudslide.
More than 1600 Australians are officially listed as "missing". Some may be dead, the victims of murder or misadventure. But others just choose to leave their old life behind and start a new life with a new name.
Sometimes when a person goes missing, perhaps when swimming at sea or after boarding a plane that crashes, or climbing a mountain and not returning after an avalanche, an inference of death can be found due to the circumstances of the disappearance. In these instances, death is presumed.
Seven-year rule for being declared dead
Where the circumstances do not allow for a presumption of death, there is common law precedent to say that if seven years have passed since a person has last been seen, in circumstances where it would be expected to see them, then there is a presumption of death.
This does not apply to a fugitive who has no interest in being found.
Interestingly, the seven-year rule came into existence from the 1937 High Court case Axon v Axon, which rejected a wife's claim on her missing husband's estate, saying he had deserted her and could be in hiding to avoid paying alimony.
Reducing the period before someone is declared dead
There have been calls to reduce the time period before someone can be declared dead, due to improved communications technology. Courts have made findings of presumption of death within the seven-year period.
The Supreme Court is able to infer death without a body being found sooner than after seven years are up if there is significant circumstantial evidence, such as if the person fell overboard from a cruise ship or never returned from climbing Mt Everest.
The court then declares that the missing person died on a particular date - usually the day they were last seen alive - and the Registrar of Births, Deaths and Marriages provides a death certificate on that basis.
But what if a person is on life support? If machines keep the body functioning, is there a point when the law says they are dead? Under section 33 of the NSWHuman Tissue Act 1983, a person has died when there is (a) irreversible cessation of all function of the brain, and (b) irreversible cessation of blood circulation.
Who is declared dead first when a couple die together?
There is another quirk in the law when a couple die at the same time, say in a car accident or plane crash.
The Succession Act 2006 states that if a couple die simultaneously, such as in a vehicle accident, the younger of them is deemed to have died second, and that person's will applies.
That means the younger person would inherit any estate coming to them from the older partner, and it is the beneficiaries of the younger person's will who would receive the estate. (For more information please see Whose will applies if both parents die at the same time?)
Joshua Crowther
Estate planning, wills and probate
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
