Neville v Benjamin [1902] 1 Ch 723
In re Dolling, deceased
Dolling v Dolling [1956] VLR 535
In re Jackson
Jackson v Ward [1907] 2 Ch 354
Re Green's Will Trusts
Source
Original judgment source is linked above.
Catchwords
Neville v Benjamin [1902] 1 Ch 723
In re Dolling, deceasedDolling v Dolling [1956] VLR 535
In re JacksonJackson v Ward [1907] 2 Ch 354
Re Green's Will Trusts
Judgment (5 paragraphs)
[1]
Introduction
HIS HONOUR: If a beneficiary has disappeared, how is the law to deal with the distribution of the estate to a share of which, he, or she, is entitled? That is the question to be determined in these proceedings. The answer, in a case where the distribution of the estate is held up by uncertainty as to whether the beneficiary is alive, or dead, the executors, may apply to the Court for, and the Court may make, an order that the executors are at liberty to distribute the estate on some particular factual basis - e.g. that a missing beneficiary is dead with, or without, issue.
It is this type of order that is termed "a Benjamin order". It is derived from the Chancery decision of Joyce J in In re Benjamin; Neville v Benjamin [1902] 1 Ch 723, in which the testator was survived by twelve children. A thirteenth child, Philip, had disappeared whilst on vacation and after he was suspected of having defalcated monies from his employer. After an inquiry, the Master was unable to certify whether Philip was living or dead. No-one had responded to advertisements. The trustees sought permission to distribute the estate upon the basis that he had predeceased the testator. Joyce J held that Philip must be presumed dead, and gave that permission.
The jurisdiction to make such an order is not founded on proof, but rather on the basis of the practical probabilities of the facts, known to the court at the time of making the order: Bickford v Benson [2015] WASC 161 at [13] (Jenkins J). The question whether such an order should be made does not depend on whether there will be administrative inconveniences caused by the administrator retaining the estate funds, but depends on whether, in all the circumstances, the administrator ought to be allowed to distribute, and the beneficiaries allowed to enjoy their apparent interests sooner rather than later: Re Green's Will Trusts; Fitzgerald-Hart v Attorney General [1985] 3 All ER 455 at 462 (Nourse J).
In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J (as his Honour then was), at 697, described the principle as "a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled".
Very recently, I revisited the principles relevant to the making of Benjamin orders in Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 at [41]-[44]. I shall not repeat what I wrote in that case. Such an order does not vary, or destroy, beneficial interests, but merely enables the estate to be distributed in accordance with the practical probabilities. The order is made without prejudice to the rights of any person to trace his, her, or their, share into the hands of the recipient if it be established that they survived the deceased or otherwise as the case may be.
In the present case, there is another principle upon which reliance could be placed. If the problem referred to arises in proceedings in which a party has to prove the death of the beneficiary, then, where there is no acceptable affirmative evidence that he, or she, was alive at some time during a continuous period of seven years or more, and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the beneficiary died at some time within that period, and the party upon whom the burden falls of proving the death of the beneficiary may rely on that presumption: Chard v Chard [1956] P 259 at 272 (Sachs J).
In Chard v Chard, his Lordship wrote:
"To that there is an exception which can be assumed without affecting the present case. By virtue of a long sequence of judicial statements, which either assert or assume such a rule, it appears accepted that there is a convenient presumption of law applicable to certain cases of seven years' absence where no statute applies. That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows. Where as regards 'A.B.' there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first, that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstances, 'A.B.' will be presumed to have died at some time within that period. (Such a presumption would, of course be one of law, and could not be one of fact, because there can hardly be a logical inference from any particular set of facts that a man had not died within 2,555 days but had died within 2,560.)"
This passage of Sachs J's judgment was quoted, with apparent approval, by Holt M in In re Margarete Maria White [2001] TASSC 7 at [10], by Gray J in In the Estate of Peter Dale Hills [2009] SASC 176 at [6], and cited by Ferguson J (as her Honour then was) in Re Curran [2010] VSC 455 at [8].
The position was also stated by Herring CJ in In re Dolling, deceased; Dolling v Dolling [1956] VLR 535 at 538:
"And today the position is that there is a presumption of law that a person who has not been heard of for seven years is dead. But there is no corresponding presumption of law in favour of the continuance of a life up to a particular period. Whether a person is or is not alive at a certain date is purely a question of fact. The whole matter was canvassed at length by Sir G. M. Giffard LJ in In re Phené's Trusts (1870), LR 5 Ch 139.
…
The Lord Justice made it clear that in his view there is no presumption of law in favour of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards. I think that Dixon J was careful in Axon v Axon (supra) not to put the matter any higher, for at p. 405 he says:
'The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.'"
In Victoria Agnes Nolan as Administratrix of the Estate of Barbara Nolan, deceased v Nolan (2011) 6 ASTLR 80 at 90; [2011] WASC 224, EM Heenan J wrote, at [33]-[34]:
"Where a beneficiary has disappeared in circumstances where the absence leads to an inference of death, an order may be made that the trust estate be distributed on the basis that the beneficiary is dead: Re Reynolds Trusts (No 2) [1942] QWN 40.
In both Re Hickey (dec); Dwyer v Hickey [1925] VLR 270 and Re Dolling declarations were made authorising the trustee to distribute on the footing that the missing beneficiary had died without a formal declaration of presumption of death being made."
[2]
The Proceedings
The Plaintiffs seek the following relief:
"1 A Declaration that Robert James Walsh ('the Beneficiary') predeceased Robert Charles Walsh ('the Dececeased') [sic].
2 In the alternative and in the absence of any evidence, that the Beneficiary did not survive the Deceased.
3 In the alternative an order that the Plaintiff be at liberty to distribute the estate to Stephen Charles Walsh and Susan Marion Walsh being the other joint beneficiaries.
4 In the alternative, the Plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the Affidavit of Gina Pantazopoulos Walsh; and
5 An order that the Plaintiffs' costs be paid out of the Estate on an indemnity basis."
The proceedings were first listed in the Succession List on 24 April 2020, at which time a direction was made for further evidence to be filed. The matter was adjourned to 1 June 2020, and in accordance with directions then made, submissions were sent to the Court, on 15 June 2020. As I was satisfied that there was no requirement for a contradictor, I have dealt with the case, in Chambers, on the papers, with the agreement of the Plaintiffs' legal representatives.
[3]
Background Facts
These proceedings concern the estate of Robert Charles Walsh (the deceased), who died on 17 January 2012.
On 20 April 2012, this Court granted Probate of the deceased's Will dated 11 November 2011 to John Henry Walsh and Gina Pantazopoulos Walsh, the two executors appointed under the Will. They are the Plaintiffs in these proceedings.
The sole question that arises in this matter relates to how one part of the deceased's residuary estate should be distributed.
The deceased's Will, relevantly, gave a pecuniary legacy of $20,000 to Lynette Judith Travers and then left the rest and residue of the whole of the estate to such of the three children of the deceased, namely Stephen Charles Walsh, Robert James Walsh and Susan Marion Walsh as survived the deceased and if more than one, in equal shares, provided that should any of them predecease him leaving issue, then the issue was, or were, to take the share to which their parent would have been entitled had he or she survived the deceased: Clause 3 of the Will.
Stephen Charles Walsh was born in May 1958; Robert James Walsh was born in March 1961; and Susan Marion Walsh was born in October 1966.
In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased's estate was disclosed as having an estimated or known value of $216,665. It was said to consist of real estate at Nowra East ($200,000), furniture, watches and jewellery (nominal value), money in bank or in financial institutions on deposit ($4,665) and two cars ($5,000 and $7,000).
A Notice of Intended Distribution of estate assets and payment of liabilities was advertised on 27 April 2012. In October 2012, the estate's solicitors advised the Plaintiffs, in writing, that they were then "entitled to distribute the assets" as their office had "received no notification of particulars of any claims against the estate since the publication of the notice".
Included in the letter from the estate's solicitors, addressed to the executors, were particulars of the assets and liabilities of the estate. The gross value of the estate, (excluding a reference to cents), at that time, was said to be $186,805, and the outstanding liabilities were said to be $15,892.45, leaving $170,912 available for distribution. After the distribution of the pecuniary legacy of $20,000 to Ms Travers, the amount available for distribution would have been about $150,912, meaning that each of the children of the deceased would be entitled to $50,304.
As at 27 March 2020, the amount left to be distributed was $62,416. It comprises a term deposit ($50,416) and an amount of $12,000 held in the Trust Account of the Plaintiffs' current solicitors.
The Plaintiffs, despite investigations, have not been able to locate Robert James Walsh. Importantly, none of his family members has been in contact with him for nearly 20 years.
The Plaintiffs rely upon an affidavit of Gina Pantazopoulos Walsh affirmed 27 March 2020, which relevantly provides:
"7. From our enquiries, no one in the family had heard from the missing beneficiary since about 2004. He was a hard drug user and had severed contacts with the family. At one stage it was believed he was on a methadone program and he was living in Lismore at that time. He also may have moved to Melbourne and could have been working with the Salvation Army down there. Enquiries have been made with clinics and the Salvation Army but there has been no positive responses. Enquiries have been made on the internet and Facebook, again with no positive responses.
8. John Brent & Co, solicitors made further enquiries with Centrelink by letter dated 15 March, 2016 … I have been advised and verily believe that no response was received from Centrelink to that letter or other follow up letters.
9. I believe that our solicitors have made other enquiries and engaged the services of Worthington Clark Pty Ltd to undertake various enquiries and searches to try and locate the missing beneficiary. Attached … is a report from Kate Rutherford from Worthington Clark Pty Ltd and the results of associated searches relating to their enquiries to try and locate the beneficiary.
10. When the missing beneficiary was last in touch with the family, he did not have any children and nobody has been contacted by the missing beneficiary or any other persons indicating that he does have children."
The report referred to in par 9 above relevantly states:
"3. INFORMATION KNOWN ABOUT THE BENEFICIARY
3.1. We were instructed that the Beneficiary:
3.1.1 had been a drug user and that around the time of the death of the Deceased (2012), he was on the Methadone program in Lismore; and
3.1.2 may have been in a relationship with a female named 'Jean' nicknamed 'Jeannie' and they could have been working down at the Salvation Army in Melbourne.
4. SEARCHES FOR THE BENEFICIARY
4.1. By letter dated 15 February 2016, we wrote to the Riverlands Drug & Alcohol Centre at Lismore requesting information about the whereabouts of the Beneficiary.
4.2. On 19 February 2016 we received a telephone call from Donna Huxley of the Riverlands Drug & Alcohol Centre advising that they had never heard of someone with the name Robert James Walsh.
4.3. On 26 February 2016 we telephoned the Salvation Army in Victoria following up my letter and spoke to several people including the Director of Volunteers. They advised that they searched their lists and there was no one by that name.
5. ELECTORAL ROLL RESEARCH
5.1. We examined old electoral rolls for the years 1980; 1990, 1995, 2000 and 2008. We reconciled these findings against databases where indicative birth years are identified. None of these people corresponded to the Beneficiary.
5.2. We also examined electoral rolls in 2017 and found 11 people with this name. We wrote to those people with this name who were not already ruled out (See 5.1 above).
5.2.1. No positive response was received.
5.3. We also located a Robert James Kingston whose age corresponded to the Beneficiary on the basis that he may have reverted to his mother's name. He contacted us and advised he was not the son of the Deceased.
6. PROPERTY OWNERSHIP SEARCHES
6.1. Properties owned in New South Wales by people with the name Robert James Walsh were examined and ruled out on the basis that they were not the Beneficiary.
7. DEATH NOTICES
7.1. We obtained a number of death notices for the name Robert Walsh and Robert James Walsh and examined them. None of them corresponded to the identity of the Beneficiary.
8. BIRTH, DEATH & MARRIAGE REGISTRY SEARCHES
8.1. Registry searches were made in New South Wales for any record showing the Beneficiary as the parent of any child, as married or any death record for the Beneficiary. No Record Results were received on each of these searches.
8.2. Registry searches were made in Victoria for any record showing the Beneficiary as the parent of any child, as married or any death record for the Beneficiary. No Record Results were received on each of these searches.
8.3. A Registry search was made in South Australia for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
8.4. A Registry search was made in Western Australia for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
8.5. A Registry search was made in The Australian Capital Territory for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
8.6. A Registry search was made in Tasmania for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
8.7. A Registry search was made in The Northern Territory for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
8.8. A Registry search was made in Queensland for any record showing the Beneficiary as Deceased. A No Record Result was received on this search.
9. DIFFICULTIES WITH SEARCHING FOR THE BENEFICIARY
9.1. There are a large number of people on the search databases and records with the name Robert James Walsh. In addition, there is:
9.1.1 No knowledge of occupation;
9.1.2 No known address connected to Beneficiary at any time.
9.2. In these circumstances, finding leads to locate the Beneficiary has proven to be very difficult. Without details that allow us to identify the Beneficiary, including the name of a spouse any children, the presence of a digital footprint, appearance on the electoral roll, ownership of property, prospects of determining the whereabouts of the Beneficiary are extremely poor."
A copy of some of the searches referred to are attached to the report and form part of the annexures to the affidavit of Ms Walsh.
The Plaintiffs also rely upon an affidavit affirmed 18 May 2020 of the other Plaintiff, John Henry Walsh, who is the brother of the deceased and the uncle of the three residuary beneficiaries. He states:
"3. I last saw Robert about 35 years ago at my son's birthday party. My oldest son, Michael John Walsh ('Michael') was celebrating his 21st birthday party our house at 8 Leigh Place, Ashcroft. The party started in the late afternoon and went into the evening.
4. Robert attended the party. He did not have a girlfriend at the party. He did not have children at the time. He was about 20 years old. I recall that he looked quite healthy.
5. I did not have a conversation with him at the party. I remember seeing him talking to Michael and the other young adults including his cousins at the party. He did not want to mix with the 'oldies'.
6. Both Robert's mother and father attended the party too even though they had separated some years before.
7. Robert was a bit of a loner. He mainly kept to himself. It was well known within the family that he drank excessively from his early teenage years.
8. In or about 2017, during National Missing Persons Week, I attended Gosford Police Station and spoke to a male constable at the front desk. I wanted to know if they had Robert noted as a 'missing person'. I recall the officer saying to me:
Constable: 'All we can say is that he is on our books as an itinerant. He is on our file but we haven't heard anything about him in 10 years.' or words to that effect.
9. In or about 2018, during National Missing Persons Week, I attended Gosford Police Station for a second time and spoke to a male constable at the front desk. Again, I wanted to know if they had Robert noted as a 'missing person' or if they had any other information on Robert. I had a conversation with the constable to the following effect:
Me: 'I would like my nephew, Robert [James] Walsh, noted as missing person.'
Officer: 'How do you know he's missing?
Me: 'Well his family haven't seen him in about 20 years'.
Officer: 'That doesn't mean he's missing. Maybe he just doesn't want to be found.'"
They also rely upon an affidavit affirmed 20 May 2020, of Stephen Charles Walsh, who states:
"2. The last time I saw Robert was at my sister's 21st birthday in 1987.
3. My sister, Susan Walsh, was living in a rented house in Caloundra, QLD, at the time. She invited Robert and I to her 21st birthday celebration which was held at her house.
4. I remember that I was living in Sydney at the time. I was working in the building and construction industry for Leighton Holdings and Candac Ltd as a surveyor's assistant. I was working on repairing the Garden Island navy wharf. I flew by airplane to Caloundra Airport the day before the party from Sydney Airport. I recall it was a Friday and Susan's party was on the Saturday. I went up there by myself.
5. I stayed at Susan's house for a couple of nights. There were not enough bedrooms in the house, so I slept on the couch in the living room. When I arrived, Robert was already at Susan's house. When I left on the Sunday after the party, Robert remained at Susan's house.
…
7. It was well known that Robert was a heroin addict and alcoholic. I did not ever see him using drugs but I went to the same school as him where many of my classmates used heroin and saw the 'after-effects' and the influence the drugs had on Robert. I stayed well away from that."
In an affidavit, affirmed on 20 May 2020, Susan Marion Walsh states:
"4. Robert and I were always close. Our mother left the family home when I was four (4) years old so we stuck together.
5. I had my first child, Dillon Walsh ('Dillon') when I was 15 years old.
6. When I was 16 years of old, Robert and I lived together in a share-house in Murwillumbah with a few of our friends.
7. In the early 1990s, Robert and I lived together in a house in Caloundra for about two (2) years. He would babysit Dillon and my daughter, Simone, for me when I went to work.
8. In or about late 2000, I was residing in Coffs Harbour.
9. I still maintained friendly contact with my ex-boyfriend, Mr Turhan Dervish, who was residing in Lismore at the time with our daughter, Simone. Mr Dervish telephoned me. We had a conversation to the following effect:
Dervish: 'Why don't you come to Lismore? You know, I'm here with Simone and your brother's living here too.'
Me: 'Oh, I didn't know Robert was up there.'
Dervish: 'Yeah, he's staying at The Tourist caravan park.'
Me: 'Oh, ok.'
10. Within a few weeks of that telephone conversation, I relocated from Coffs Harbour to Lismore with Dillon who was then 18 years old son [sic]. We packed up the car and caravan and drove to Lismore. When we arrived in Lismore, we went to stay at the Lismore Centra Tourist Park, a caravan park situated on Dawson Street, Lismore. Most people referred to it as 'The Tourist'. Robert was living there with his girlfriend. I knew his girlfriend only by her first name of 'Jeannie'. I did not know her surname.
11. Robert's caravan and my caravan were parked [within] a few vans of each other at the caravan park.
…
13. We saw each other every day while we were staying at The Tourist. This went on for about six (6) months. None of us had jobs. We ate our meals together. We had coffee together. We would chat and go for walks down-town. It was also an opportunity for Robert to get to know Dillon.
…
16. I recall one day when we were at the caravan park, Robert said to me:
Robert: 'Me and Jeannie are moving to Melbourne. Jeannie has family down there.'
Me: 'Well, I hope you take care of yourself. I'll miss you. You have my number.'
Robert: 'Yeah. I want to get off the alcohol and get my life together better.'
Me: 'Yeah. That's good.'
…
18. When Robert told me he was relocating to Melbourne, this did not surprise me. He did not stay in one place for very long. He moved from place to place. Before moving to Lismore, Robert had lived in Brisbane.
19. When I woke up the next morning his car and caravan had gone from the park. I did not expect him and Jeannie to leave so suddenly.
20. Robert did not leave a forwarding address.
21. I have had the same mobile number since the late 1990's. Robert did not own a phone when he stayed at the caravan park.
…
23. I have not had any contact with Robert whatsoever since our time together in Lismore."
Each of his siblings, and his mother, is a person with whom it might be expected Robert James Walsh would keep in touch.
Finally, the Plaintiffs rely upon an affidavit affirmed 22 May 2020, of Ms E Edwin, a solicitor employed by their solicitors. She gives evidence of the searches she has undertaken, including, "an on-line search of the probate registries in NSW, Queensland and Victoria" respectively, with no return result. She also gives evidence of a conversation that she had with Rosemary Madge Kingston, Robert's mother, who informed her that the last time she saw her son, Robert, "would have been about 30 or 40 years ago". Ms Kingston added that it may have been earlier.
I am satisfied that the Plaintiffs have carried out the necessary and proper investigations to locate Robert James Walsh and that there are no further reasonable enquiries that should be made and would be likely, in any event, to identify whether he is still alive. The absence of any positive identification or response leads to the inference that he may have died.
[4]
Determination
In the written submissions provided on behalf of the Plaintiffs, reliance is placed upon Uniform Civil Procedure Rules 2005 (NSW) r 54.3(2) which, relevantly, provides that proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question arising in the administration of an estate.
In Re Parker [1995] 2 Qd R 617, Lee J wrote at 621:
"When it becomes necessary in a legal proceeding to establish the death of a person, the party on whom the burden of proving that issue lies may do so directly, circumstantially or presumptively: cf Axon v Axon (1937) 59 CLR 395 at 403 per Dixon J."
The standard of proof is the balance of probabilities.
Where a court is unable to draw an inference of death from facts given in evidence, it may have resort to what has been described as "the presumption of death". The Plaintiffs presumably invoke the presumption, although not specifically adverted to in the written submission provided on their behalf, that if a person has been absent for seven years, and has not been heard of by those who could be expected to have heard, he or she will be presumed to have died some time during the period of that person's absence unless there is proof to the contrary that the person is still alive.
It is important not to confuse the process of inferring death from the evidence available, and the application of the presumption of death at law. The learned authors of Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co), write at 637:
"Care needs to be taken not to confuse proof of death by inference from proof of death by presumption of law. With the former there is evidence from which the court may infer that it is more probable the person has died rather than be living. In the latter there is no evidence of death at all." (citations omitted)
This case, as is evident from the recitation of the facts above, is an example of the latter. I dealt with the former in Estate of Lyn Burtonwood [2020] NSWSC 715.
The common law principles as to the presumption of death at law are of long standing. These principles were well-summarised in Allman & Co v M'Cabe [1911] 2 IR 398, in which Boyd J wrote at 402:
"In the case of persons of whom no account can be given, the law presumes their death at the expiration of seven years from the time they were last known to be living: Nepean v Doe d. Knight; Doe d. George v Jesson; Doe d. Lloyd v Deakin. In the case of Doe v Nepean, approved of and followed in In re Phené's Trusts, it was decided that where a person goes abroad and is not heard of for seven years the law presumes the fact that such person is dead, but not that he died at the beginning or end of any particular period during those seven years; that if it be important to anyone to establish the precise time of such person's death, he must do so by evidence."
In Australia, the common law principles applied in circumstances involving the disappearance of a person were summarised by Dixon J (as his Honour then was) in Axon v Axon (1937) 59 CLR 395; [1937] HCA 80. His Honour described the common law presumption of death as a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead, stating at 404-405:
"When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man's fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.
...
If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives."
Latham CJ explained at 401:
"She relied upon the rule that, if a person has not been heard of for seven years by persons who in the ordinary course would have been expected to hear of him if he were still alive, it may be presumed that he is dead (Taylor on Evidence, 11th ed. (1920), vol. 1, par. 200). The complainant had not heard of her former husband for fourteen years and contended, therefore, that it should be presumed that he was dead. But the application of the rule does not establish death at any particular time (In re Phene's Trusts). It only produces the result, if a person has not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings. The rule does not bring about the result that the person is deemed to be dead at the end of a seven-years' period (cases cited in Halsbury's Laws of England, 2nd ed., vol. 13, pp. 630, 631)." (citations omitted)
Evatt J wrote at 411-412:
"It is true that, apart altogether from the presumption of death prior to remarriage which, in my opinion, is required by the bigamy enactment, there exists the presumption which Stephen calls 'the presumption of death from seven years' absence.' Such presumption is of general application, and its nature and history are fully discussed in Re Phené's Trusts. In that case, Giffard L.J., in a judgment which has since won frequent approval, quotes the case of Doe v Nepean, where the Court of Exchequer Chamber had laid emphasis on the fact that the Act 18 & 19 Car. II c. 11 (misquoted as c. 6) distinctly points to the presumption of the fact of death, but not the time of death. As is pointed out in Stephen's Digest of the Law of Evidence, Art. 99, the general presumption of death carries with it no presumption as to the time of death, and the burden of proving death at any particular time is on the person who asserts it. Such general presumption operates so as to prove the fact of death at the time of the institution of the legal proceedings where the fact giving rise to the presumption is proved. Of course, in many cases, such presumption is sufficient to carry the person who relies upon it the necessary distance, e.g., in cases under an insurance policy, where the fact of the termination of the life is sufficiently proved if death can be presumed as at the time when the writ is issued (Prudential Assurance Co. v Edmonds). In many cases, however, where death must be shown to have occurred at some point of time anterior to the curial proceedings, the presumption may carry the party relying upon it only a certain distance, or no distance at all (Re Phené's Trusts)." (emphasis in original) (citations omitted)
The effect of the presumption is to give rise to a conclusion that, at the time of the proceedings, the person is no longer alive. There is no presumption as to when the person died. Nor is it presumed that death occurred seven years after the last contact with the person.
As Waddell J (as his Honour then was) put it in Halbert v Mynar [1981] 2 NSWLR 659 at 664:
"It is to be emphasized that the presumption of death is one of law and that it does not involve any finding that death occurred at any time before the commencement of the proceedings in which it is applied. In particular, death is not presumed at the end of the seven year period."
The court merely declares that as at the date of the institution of the proceedings the relevant person is dead: Ross v NRMA Life Limited (1993) 7 ANZ Insurance Cases ¶61-170 at 77,964 (Young J).
Whilst the law has used the period of seven years as a yardstick to displace the inference of continuation of life, the period involved is substantially longer in this case.
Although, in the circumstances discussed above, the Court may presume a person to have died, there is no common law presumption that a person has died without issue: In re Jackson; Jackson v Ward [1907] 2 Ch 354 at 356-357 (Kekewich J); Re Saunders; Park v Austin [1928] NZLR 391 at 393-394 (Blair J); Re Reynolds' Trusts [1942] QWN 16 at [7] (E A Douglas J).
In Estate of Howard (1996) 39 NSWLR 409, Cohen J addressed these authorities at 415:
"As Professor Treitel, above, points out (at 543), the language of many judgments is emphatically against a presumption of death without issue, but in his view it is an open question whether the effect of the judgments is consistent with the expressions contained in them. In Greaves v Greenwood (1877) 2 Ex D 289, it was said that there should be some evidence, although inconclusive, which would permit a finding that a person had died without issue. Treitel (at 544-545), in referring to this, said:
'This is only reasonable as the element of speculation involved in presuming death without issue is very much greater than that involved in merely presuming death. Exactly what that "something more" consists of it is difficult to say. It would seem that either there must be some evidence of death without issue, even though it be insufficient to lead of its own force to the desired conclusion; or that the circumstances must be so shrouded in uncertainty by the passage of time that it is practically impossible to obtain any evidence at all.'
He went on to point out that courts have been quite happy to find a presumption of death of a person unmarried and that a finding that they were unmarried and without children seems no more outrageous. Indeed courts have not required a great deal of evidence to make a finding that a person has died without issue: Re Jackson; Jackson v Ward [1907] 2 Ch 354; Re Benjamin; Neville v Benjamin [1902] 1 Ch 723."
His Honour had also noted, at 415, that "[a]lthough there is a certain artificiality in raising presumptions when facts are not really known, the law relating to the presumption of death has grown out of the necessity to have a finding which will give a practical solution where otherwise there would be only continuing uncertainty for an indefinite period".
His Honour's reference to In re Benjamin is apt. As the learned authors of Wills, Probate and Administration Law in New South Wales point out at 639, in the absence of a legal presumption of death without issue, one solution is for a Plaintiff to obtain a Benjamin order. That is what should occur in this case.
In the circumstances, I am unable to make the declaration sought in pars 1 and 2 of the Summons. I cannot be satisfied, on the current evidence, that Robert James Walsh predeceased the deceased or that he died without issue. That does not mean, however, that I should not find that, at the time of the proceedings, he is no longer alive. It is clear that he went missing in the early 2000s and has not been heard of since then. More than seven years has elapsed.
There is simply no reliable information about him since he was last spoken to. There is no suggestion that any of his family have shut their eyes to possible sources of reliable information, or that he has been heard of by persons other than those likely to have heard of him. It is not suggested that there are circumstances, other than death, to account for the absence and lack of contact.
I am satisfied that all reasonable investigations have been undertaken by the Plaintiffs to determine whether he is still alive. In my view, to require them to undertake any further searches would be unnecessarily expensive and time consuming with no reasonable prospect of eliciting any further information.
It is clear that there remains some uncertainty as to whether Robert James Walsh died, and if so, whether he died testate or intestate and, in either case, who may be entitled to his estate. As such, this is an appropriate case for the making of a Benjamin order.
In the circumstances, I order that the Plaintiffs are at liberty to distribute the balance of the deceased's estate to Stephen Charles Walsh and Susan Marion Walsh, the only two residuary beneficiaries named in the Will of the deceased.
I order that the Summons otherwise be dismissed. I also order that the Plaintiffs' costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.
[5]
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Decision last updated: 04 August 2020