Allman & Co v M'Cabe

Supreme Court of NSW|2022-12-19|Before: Hallen J, Commission J

Solicitors: Farrell Goode Solicitors (Plaintiff) File Number(s): 2020/330647 Publication restriction: Nil

Introduction

In Guo v Gao [2021] NSWSC 1059 at [1], I wrote: "People disappear - maybe as a result of a tragedy, maybe for other reasons, or, sometimes, for reasons unknown. It may be impossible, at a particular time, to say, with certainty, in relation to a particular person, that she or he, is, in fact, no longer alive. If a person has disappeared, leaving no trace behind, but leaving property, both real and personal, in New South Wales, and it is not known whether she, or he, has died, how is the law to deal with her, or his, assets, deal with representation to be granted of her, or his, estate, and then the distribution of that estate? When, and in what circumstances, can the person, who cannot be located, be presumed dead?"

The Proceedings

Jill May Morison, who is a sister of Neil Walter Morison (to whom I shall refer, hereafter, for convenience, as "NWM"), applies, by Summons filed on 23 November 2021 for letters of administration of his estate, on intestacy, and on presumption of death, pursuant to s 40A of the Probate and Administration Act, 1898 (NSW). She also seeks leave to distribute NWM's estate, pursuant to s 40B of the Probate and Administration Act, upon the basis of the operation of the rules of intestacy. She filed an amended Summons on 28 October 2022, but it did not change the substance of the relief sought.
NWM left movable property in NSW of modest value.
Ms T Catanzariti, counsel for the Plaintiff, requested the Court to deal with the matter, in Chambers, on the papers. On 5 November 2022, she provided detailed written submissions to the Court. In the circumstances, the Court acceded to the request and no oral argument occurred.
However, on reading the contents of the Court file, it was necessary to raise some requisitions in order to deal with the matter in this way. These reasons have been delayed because the evidence, which needed to be supplemented, took far longer to obtain than was anticipated.
In ordinary litigation, the Plaintiff must decide who to name as a defendant. In this case, no person was named. However, notice of the application was given, by the solicitor for the Plaintiff, on 17 November 2021, to the following relatives of NWM: 1. Marion Elizabeth Francis, a sister; 2. Thomas James Morison, a brother; 3. Ronald Phillip Morison, a brother; 4. Alexander Charles Morison, a nephew; 5. Linda Anne Wood, a niece; 6. Wayne John Morison, a nephew; 7. Rodney Mark Morison, a nephew; and 8. Janine Louise Morison, a niece.
Notice of these proceedings was also served on the following insurers: 1. Resolution Life (formerly AMP Life); 2. Allianz Australia Limited; 3. MLC Life Insurance; and 4. AIA Life Insurance (formally Colonial Mutual Life Assurance and Prudential Life Assurance).
No person who, and no entity which, was served filed an Appearance, or otherwise indicated a wish, or intention, to intervene in the proceedings. I am satisfied that the Plaintiff has given notice to the persons who are, or who may be, affected by the orders.
As in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55]-[62], I am also satisfied that there is no need for a contradictor to be named, mainly because the evidence, to which I shall refer, appears to be all one way. Indeed, there are no countervailing factors to delay dealing with the matter.
This Court has power to grant declaratory relief under s 75 of the Supreme Court Act 1970 (NSW). As well, like all superior courts, it has inherent power to grant declaratory relief: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 346-347 [13]; [2016] HCA 2 at [13] (French CJ, Kiefel, Bell and Keane JJ). That in a case such as this that a superior Court may do so is also made clear from cases such as Lashko v Lashko [2011] WASC 214 and Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230, the latter of which involved applications for declaratory relief, in which the rebuttable presumption of fact relied upon in this case was sought to be invoked.
The material before the Court, which goes to establishing the necessary elements to enable the questions to be answered, will be considered in order to determine whether it provides a proper basis for giving the relief sought. In any event, there is no person who, or entity which, would have a sufficient interest to oppose the granting of the relief, or be likely to be able to add anything to the evidence that the Plaintiff has adduced.

Dealing with the matter in Chambers

Section 11 of the Supreme Court Act 1970 (NSW) provides: "11 Distinction between court and chambers (1) The distinction between court and chambers is abolished. (2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court."
Under s 11, there is no restriction on where the Supreme Court may exercise its powers, apart possibly from constitutional limits, not relevant in this case, requiring there to be a nexus with New South Wales. This is apparent from s 11(2) of the Supreme Court Act, which, by the use of the phrase "or otherwise", contemplates no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [147] (Campbell J). Indeed, the section specifically "abolishes the distinction between court and chambers": Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [9].
In addition, the business of the Court, whether conducted in court, or otherwise, is taken to be conducted in court.
I should also refer to s 71 of the Civil Procedure Act 2005 (NSW), which section permits the business of a court, in relation to any proceedings, to be conducted in the absence of the public, "...(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit".
Whilst a chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom, dealing with a matter "in chambers" does not mean that the proceedings are dealt with in secret. To deal with a matter in chambers means no more than a less formal procedure may be adopted by the Court where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 at [19] (White J, Davies and Williams JJA agreeing).
In the Succession List, the Court, frequently, makes orders in chambers. The procedure enables matters to be determined informally and expeditiously. The documents in the Court file, where relevant, are read, and those documents are identified in the Court's record of proceedings: Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 at [79]; Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [131]. It saves the costs of a hearing conducted with oral submissions.
In the circumstances, I considered it appropriate to deal with the matter in chambers.

Background Facts

On the written evidence submitted, I find the following facts. In stating these facts, there is nothing to suggest, in this application, that the general rule that the standard of proof in civil cases, being the "balance of probabilities", is altered. This means no more than a fact is proved if the Court is satisfied that it is more likely to be true than not true.
NWM was born in May 1948, in Strathfield, a suburb of Sydney, New South Wales.
NWM went missing in about 1972. He has not been seen, or heard of, since then. There are no reasons, known to the Plaintiff, for him not to have communicated with the members of his family in the 50 years that has passed since then. He has not been known to be alive, at any time, since then.
Evidence reveals that NWM joined the Australian Defence Force in April 1971 but was discharged on 13 October 1972 for being absent without leave.
NWM was not married, or in a de facto relationship, at the time of his disappearance. So far as is known, he then had no issue. Both of his parents have died, his father, Alexander Morison, on 22 August 1959, and his mother, Marion May Brown, on 2 July 2007.
NWM had eleven siblings, some of whom died before the making of this application. The siblings are: 1. Andrew William Morison, who died on a date between 17 October 2016 and 5 November 2016, without leaving issue. 2. David Edward Morison, who died on 14 January 1995, without leaving issue. 3. Wendy-Anne Morison, who died on 7 December 1987, without leaving issue. 4. John Mileham Morison, who died 22 January 1960, without leaving issue. 5. Joseph Rhodes Morison, who died 13 June 2018, without leaving issue. 6. Arnold Morison, who was still born in 1949. 7. Alexander Charles Morison, who died on 18 May 2015, leaving issue who survived him, the issue being Alexander Charles Morison, Linda Anne Wood, Wayne John Morison, Rodney Mark Morison, and Janine Louise Morison. 8. Marion Elizabeth Francis, who is still alive. 9. Thomas James Morison, who is still alive. 10. Ronald Phillip Morison, who is still alive. 11. Jill May Morison, who is still alive.
The Plaintiff gave evidence, by affidavit, that, before he went missing, she had a good relationship with NWM and had been in regular contact with him. She also stated that she observed that he had strong family relationships with other members of his family. She stated that he appeared to be positive, and happy, about his life.
In the years that have passed, his body has not been found. There has been no coronial inquest. Naturally, there is no Death Certificate. There is no direct evidence that NWM has died. However, because of the period of time that has elapsed, it is not necessary to bring positive proof of his death.
The NSW Trustee and Guardian has made searches for NWM, including searches of the NSW, and Queensland, Registry of Births Deaths and Marriages, the Roads and Traffic Authority (as Transport for NSW was then called), Centrelink, the NSW Department of Corrective Services, the Department of Veterans Affairs, the Department of Immigration, and the Salvation Army family tracing service, all without success.
There has been no coronial investigation.
Letters to persons with similar names, identified in the White Pages of the NSW telephone directory, have not resulted in a response.
The Plaintiff's solicitor has searched Revenue NSW and the publicly available records of ASIC. In addition, the Plaintiff and her solicitor have published a notice in the Sydney Morning Herald and have searched the National Library of Australia online site, Trove, a free online research portal. The Plaintiff has also completed an Ancestry DNA test to ascertain whether, through DNA matching, she could trace NWM. These searches, also, have been unsuccessful.
The Plaintiff, and her solicitor, have sought information from banks, including Westpac, NAB, the Commonwealth Bank and the ANZ Bank, searched insurers upon which notice has been served. All of these searches, also, have yielded no relevant information.
There were, however, no results of any searches through mobile phone records, or email services, as NWM went missing in 1972, well before mobile phones and email. Following reading the documents in the Court file, at my request, on 9 November 2022, my Associate sent the following email to the legal practitioners: "… His Honour has read the documents in the Court file. Please point to the evidence of the service of the documents on each of the persons entitled on intestacy and the consent of each to the grant of administration to the Plaintiff. Also, please identify any attempts made to the propositus: 1. Through the NSW Police; 2. Facebook or other social platform. His Honour will then consider the matter again."
On 16 November 2022, Mr J Langley, a solicitor instructed by the Plaintiff, filed an affidavit detailing further attempts to locate NWM via Facebook. He stated that on 14 November 2022, he searched Facebook to see whether there were any positive matches to the name "Neil Morison", limiting the search to 'people'. The search had returned eight results which matched the search "Neil Morison". Of the matches, a review of the profiles, with profile pictures, revealed that each of the persons was too young, based on the age NWM would be (74 years old). A review of profiles with an 'About' section of the profile with a date of birth displayed did not return a positive match to the deceased.
There were two remaining profiles that matched 'Neil Morison', which did not have a profile picture or a complete "About" section. Mr Langley sent a private message to each of these profiles asking whether they are the Neil Walter Morison who was last seen in Phegans Bay, NSW, Australia in 1972. At the date of swearing the affidavit, no response was received to the messages sent.
On 16 December 2022, Mr Langley filed another affidavit, sworn on that date, to which was annexed correspondence received from NSW Police Force in answer to a subpoena issued by him. The correspondence revealed: 1. Given its historical nature, events and incident reports dated prior to 1994, when the NSW Police Force Computerised Operational Policing System (COPS) would not be provided. 2. A Search of NSW Police Force records had resulted in a NIL Find for NWM.
I am satisfied that all reasonable investigations have been undertaken by the Plaintiff to determine whether NWM is still alive. In my view, to require her to undertake any further searches would be unnecessarily expensive and time consuming, with no reasonable prospect of eliciting any further information.
When the Court is dealing with an estate of about $50,000, bearing in mind s 56 of the Civil Procedure Act, the cost of further investigation is, proportionately, too great.

Entitlement to the estate

NWM's estate is tiny, consisting of cash of almost $53,000, which is currently held by NSW Trustee and Guardian on trust for NWM. It appears that he is a beneficiary in the estate of his mother, Marion May Brown, who, as stated, died on 2 July 2007, and that the funds held relate to his share of her estate.
The Plaintiff has not located any will made by NWM. Searches have been undertaken at his last known address, with a local law firm, Farrell Goode, and with the NSW Trustee and Guardian, all without success. There is no evidence that any of NWM's family has any knowledge of him having made a will or of a will existing. There are no obvious further enquiries that could be made in searching for a will. Currently, therefore, it appears, that if NWM is dead, he should be regarded as having died intestate.
Section 129 of the Succession Act 2006 (NSW) provides: (1) The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves: (a) no spouse, and (b) no issue, and (c) no parent. (2) If no brother or sister predeceased the intestate leaving issue who survived the intestate, then: (a) if only one survives - the entitlement vests in the surviving brother or sister, or (b) if 2 or more survive - the entitlement vests in them in equal shares. (3) If a brother or sister predeceased the intestate leaving issue who survived the intestate: (a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and (b) the presumptive share of any such deceased brother or sister is to be divided between the brother's or sister's children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child's presumptive share is to be divided between the child's children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.
No person, other than the Plaintiff, has sought administration. Her family members do not oppose a grant being made to her.

The presumption of death

I have dealt with the law in Guo v Gao. For the benefit of the Plaintiff, the other siblings, and the nieces and nephews of NWM, I shall repeat what I wrote in that, and in other cases that are relevant.
It is fundamental to any application for probate, or letters of administration, to show that the person whose estate would be the subject of the proposed grant of probate or administration is dead. That is usually satisfied by the presentation of a death certificate. As no death certificate has been issued in this case, the Court may consider whether to make a grant of probate or administration upon the basis that death can be presumed.
The test to establish the death of a person is a positive one based upon direct evidence of death. In relation to presumed death, the test is one dependent upon an absence of knowledge of the death of the missing person.
In Application by Walsh (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976; (2020) 20 ASTLR 45 at [33]-[35], I wrote: "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' ..."
It has been written that "[a]n application for a grant on presumption of death occurs in all cases where the body is not found … This is the case even though a certificate of death may have issued": Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at 9234 [5067]; David Liebhold, Stephen Janes, Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2019, Thomson Reuters) 636.
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 Wills, Probate and Administration Law in New South Wales 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)
In Re Ryan [1990] 3 NZLR 91, the applicant, who was the widow of the missing person, applied for probate in common form of the last Will of her husband in circumstances where she could not directly prove his death. The Registrar required an application for presumption of death, and the question before Tipping J (as his Honour then was) was whether that application was necessary if the evidence provided a clear inference that death had occurred. At 96, Tipping J wrote: "If a person is able to speak from direct knowledge of circumstances which, albeit not proving death with medical certainty, nevertheless enable an inference that death has in fact occurred to be drawn beyond any possible doubt then there is no need for the filing of an application for leave to presume death because, death having thereby been directly proved, its presumption is unnecessary … [there are] facts from which death can be inferred as a moral certainty. It is a different case altogether from the case where someone dies in circumstances where no other surviving person is able to depose from his or her knowledge as to what occurred. … This is therefore a case where a grant of probate in common form is appropriate …"
It is not necessary to rely on the presumption of death when the facts establish, by inference, that the person is deceased.
Section 40A(1) of the Probate and Administration Act 1898 (NSW) provides, relevantly, that 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 administration of the person's estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.
Section 40B applies where a grant is made on presumption of death. Relevantly, it provides: (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.
The cogency of the evidence that will be required to establish the death of the person is likely to be greater than that required to establish that the person has not been known to be alive for a period of at least seven years. Proving death by inference is a positive test whereas establishing the presumption of death after seven years requires proof of the absence of knowledge of the person being alive.
I turn next to the principles that relate to the presumption of death.
In Elaraby v Minister for Immigration (2018) 332 FLR 353; [2018] FCCA 1101, Judge Manousaridis wrote at [38]-[43]: "The common law presumption of death The word 'presumption' carries a number of meanings depending on the context in which it is used. One meaning equates 'presumption' with an 'inference' or a 'conclusion' that is drawn as a matter of probability on the basis of evidence that is accepted. That is the meaning of 'presumption' given by Best in 1844: And when the conclusion of the existence of the principal fact does not necessarily follow from the facts proved, but is deduced from them by probable inference, the evidence is said to be presumptive, and the inference drawn a presumption; which, therefore, in this restricted legal sense, may be defined as 'an inference, affirmative or disaffirmative of the existence of a disputed fact, drawn by a judicial tribunal by a process of probable reasoning, from some one or more matters of fact, either admitted in the cause or otherwise satisfactorily established'. . . . Another meaning of 'presumption' is a conclusion of fact (presumed fact) that, as a matter of law, must be drawn when certain facts are proved (basic facts), unless there is evidence that, if accepted, proves the non-existence of the presumed fact or the existence of a fact that is inconsistent with the presumed fact. Such presumptions are often, and for many years have been, referred to as presumptions of law. The distinction between presumptions based on probable inference (presumptions of fact) and presumptions based on a rule of law (presumptions of law) was identified by Best: It is clear, that presumptive evidence, and the presumptions or proofs to which it gives rise, are not indebted for their probative force to any rules of positive law. When inferring the existence of a fact from others that have been already established, courts of justice (assuming the inference properly drawn) do nothing more than apply, under the sanction of the law, a process of reasoning which the mind of any intelligent reflecting being would have applied for itself under similar circumstances; and the force of which, when the inference is not of a conclusive kind, rests altogether on the experience and observation of the ordinary course of nature, the constitution of the human mind, the usual springs of human action, the usages and habits of society, &c. All such inferences are called by jurists, presumptions of fact, or natural presumptions; and also by the civilians, praesumptiones hominis in order to distinguish them from others of a technical kind . . . known as . . . presumption of law. The so-called presumption of death is a presumption of law. It is a conclusion a court is required to make on the proof of a number of basic facts, provided there is no evidence that is contrary to the conclusion. The presumption, and the basic facts that must be found to exist before it can be drawn, were identified by Dixon J (as his Honour then was) in Axon v Axon … There are two matters to note about the common law presumption of death. First, although the presumption is based on the proof of basic facts that are capable of supporting a finding of death, the presumption is not a principle of common-sense reasoning that may be applied to fact-finding. It is a rule of law the common law courts formulated, largely in the course of the nineteenth century, to overcome difficulties that arose when the death of a person was in issue and there was no direct evidence about the person's being dead or alive. The second matter to note is that the common law presumption of death does not preclude a court from finding that a person has died where one or more of the basic facts are not proved. In other words, the presumption of death is not the only means by which the death of a person whose fate or whereabouts are not known may be proved. That is illustrated by a number of cases. In In Re Beasney's Trusts, for example, the question was whether a person who was last heard of in 1860 died by November 1860. The common law presumption of death applied because the proceeding in which the question arose was commenced more than seven years after 1860. The presumption, however, only permitted the conclusion that the person was dead at the time the proceeding was commenced. Sir R Mallins VC, however, concluded on the basis of the evidence before him that the person had died by November 1860. In other cases the courts found a person was deceased even though enquiries as to the existence or death of the person in question had been undertaken. That the presumption of death does not prevent the court from finding that a person has died where one or more of the basic facts that are necessary to give rise to the presumption are not proved was recently affirmed by Atkins J in Maynard v The Estate of Maynard: The jurisdiction in section 6 [of the Succession Act 1981 (Qld)] is very wide, but depends on the Court being satisfied that the person for whom probate or the administration of the estate is sought is, in fact, deceased. This usually requires the presentation of a death certificate. In some circumstances, however, as Dal Pont and Mackie set out in The Law of Succession, 'it may be difficult to conclusively determine whether or not the person has in fact died'. The common law, in dealing with that issue, has recognised what is termed a 'presumption of death'; that is, following a person's disappearance for at least seven years, the person may be presumed to be deceased. However, whether or not a person is deceased is a question of fact and as such, it is not always necessary to wait seven years for a person to be held to be deceased, even where that person's body has not been found." (citations and emphasis omitted)
The determination of the presumption is a matter of fact: Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 at 412-413 (Evatt J). The onus of establishing the presumption rests on the party who seeks it, and it is found on the balance of probabilities: Estate of Howard (1996) 39 NSWLR 409 (Cohen J).
The Court will "approach the question of proof of death with a great deal of caution because there are all kinds of unknown factors which will influence a person to move from his ordinary environment for no apparent reason whatsoever; and yet people do that very thing": R A Sundberg, Griffith's Probate Law and Practice in Victoria (3rd ed, 1983, Law Book Co) at 13-14. Yet, the burden of proof remains on the balance of probabilities.
In Axon v Axon, the Court was required to determine whether the first husband of the appellant was presumed to be dead as at the date of the appellant's second marriage to the respondent. The appellant's first husband had left her in 1923 and she had not seen, or heard, from him, again. The appellant then married the respondent on 6 January 1932. The respondent later claimed that his marriage to the appellant was not valid, because the appellant's first husband was still alive at the time it took place.
Dixon J wrote 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 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 proceeding the man no longer lives. In Lal Chand Marwari v. Mahaut Ramrup Gir (1925) L.R. 53 Ind. App. 24, at p.31; 42 T.L.R. 159, at p.160 Lord Blanesburgh, speaking for the Privy Council, said that there is only one presumption and that is that at the time when the suit was instituted the man there in question was no longer alive. 'There is no presumption at all as to when he died. That like any other fact is a matter of proof.' "
The High Court also made it clear that there is no presumption as to the time of the person's death prior to the institution of the proceedings. Latham CJ wrote at 401: "… the application of the rule does not establish death at any particular time (In re Phené's Trusts (1)). It only produces the result that, 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)."
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 (1). In that case, Giffard L.J., in a judgment which has since won frequent approval, quotes the case of Doe v. Nepean (2), 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 (3)). 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 (1))."
In Chard v Chard [1956] P 259 at 272, Sachs J wrote: "… 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 was cited by Ferguson J (as her Honour then was) in Re Curran [2010] VSC 455 at [8].
In In the Estate of Peter Dale Hills, leave to swear to death was granted where the propositus had been missing for 13 years without any contact with his family. Gray J reviewed the authorities and then observed at [7]-[8]: "An automatic presumption of fact does not arise even if seven years have elapsed without any sign of the person in question. As Legoe J noted In re Westover (1987) 139 LSJS 115 at 117: 'The mere fact that a person has not been heard of for seven years does not of itself raise any presumption of fact. But if circumstances exist such that a particular person should have been heard of within that time then the presumption of continuance of life which is the only presumption which the law makes in such circumstances may be displaced.' In Westover, Legoe J followed the recommendations set out in Mortimer on Probate Law and Practice, as to the practice to be followed in these matters. According to this practice, the applicant wishing to displace the presumption of continuance of life and seeking a finding that the presumed deceased is dead, should provide evidence including the description, age and circumstances of the presumed deceased and the circumstances of disappearance or departure. The evidence should depose to the applicant's belief in the death of the presumed deceased, and the basis of that belief, including any evidence of persons relevant to a finding of death. The applicant should demonstrate that advertisements seeking information concerning the presumed deceased have been inserted in newspapers, identifying the newspapers utilised, and the result of those advertisements. The evidence should include whether any letters have been received from the presumed deceased since their disappearance or departure and, if not, the last date of communication. It should further be established what other enquiries have been made, and any other facts that render the presumed deceased's death probable, such as an awareness of an entitlement to a fund without any claim being made. Whether the presumed deceased was insured should be established. Further matters to be established include whether the presumed deceased died intestate or testate. If intestate, the application should state the names of the next of kin and of the potential heir at law, and if testate, the will should be filed. Particulars of the value and nature of the estate of the presumed deceased should be ascertained. The requirement to establish these matters is not definitive. Other matters of relevance may also be deposed, and a failure to establish any of these matters will not necessarily defeat the application."
The party seeking to rely on a presumption of death should prove absence from the last place of residence (or, if this is not known, absence from the last place in which the missing person resided): M'Mahon v M'Elroy (1869) 5 IR Eq 1 at 12; Allman & Co v M'Cabe [1911] 2 IR 398 at 426-427.
To rely upon this presumption, it will be necessary to establish, on the balance of probabilities, the following essential matters, namely that NWM has not been seen, or heard of, for a continuous period of seven years, or more, after he was last seen alive; that there are persons who would be likely to have heard of, or from, him over that period; that those persons have not heard of, or from, him; and that all due inquiries have been made appropriate to the circumstances.
In Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, a case, initially, tried before a Judge sitting with a jury, the House of Lords suggested that a person is not "heard of" if no reliable information concerning the missing person is received by persons likely to have heard from her or him.
There is, of course, a distinction between missing, and not being in communication. The people with whom the missing person would be likely to communicate if she, or he, were alive, would be persons who would be more likely than not in contact with the missing person if she, or he, were alive, and who she, or he, would have had access to by ordinary means of communication. One would not expect the group to include every fellow resident, or relative, or friend, with whom the missing person, from time to time, had communicated with in the ordinary course of daily life.
Whilst not an essential matter to be established, one of the circumstances that the Court may take into account is whether there is a valid explanation why a person has not been heard of for that period: Estate of Howard at 413 (Cohen J). Where the missing person had a reason for not communicating with a person who would be likely to have heard of, or from, them, the presumption will not be invoked: Watson v England (1844) 60 ER 266; Estate of Howard at 413-414 (Cohen J).
As Cohen J also noted, at 415: "Although 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."
If there is evidence that the missing person has died, and the date of death is clear, it will not be difficult to fix that date. The position is less straightforward where there is evidence to satisfy the Court that the missing person has not been heard of for at least seven years.
If relevant matters are established, there arises a rebuttable presumption of law that NWM died at some time within that period, and the party upon whom the burden falls of proving his death may rely upon that presumption: Chard v Chard at 272 (Sachs J).
Thus, if a grant of probate or administration is made on presumption of death, it will not be possible for the date of death of that person to be recorded on the grant. In particular, death is not presumed at the end of the seven year period: Halbert v Mynar [1981] 2 NSWLR 659 at 664 (Waddell J).
His Honour wrote: "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).

Determination

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.
In the present case, there is no acceptable, affirmative, or direct, evidence that NWM is dead. Nor is there proof of death by inference. For those reasons, the Plaintiff relies upon proof of death by presumption of law. The starting point is the presumption, and the Court should look at all of the evidence to determine whether that evidence is consistent with the presumption.
Having carefully considered the evidence and the submissions of counsel, I am satisfied, on the balance of probabilities, that: 1. NWM has been missing for more than 7 years; indeed, he has been missing for about 50 years. 2. The body of NWM has not been discovered or identified. 3. NWM's disappearance is unexplained. The Plaintiff knows of no reason for NWM to disappear or to seek to avoid being found. 4. Even though there has been no public finding that he has died, there are no established facts that provide a reason, financial or otherwise, for NWM to have wished not to be heard of for the last 50 years. 5. NWM has not been heard of since his disappearance in 1972. There is no evidence that he was alive, at any time, during the period since he went missing. 6. There was a sudden cessation of communication which has now persisted for a long period of time. The persons who would have been likely to have heard from NWM, being most importantly, his mother, when alive, and his siblings, who are alive, have not heard from him. Each appears to have had a close and loving relationship with NWM. Those persons have not heard of him, in circumstances that it would be expected that he would have been in contact with each if he were still alive. 7. All due inquiries have been made appropriate to the circumstances. 8. There is no evidence that NWM has any issue.
With such a long period of time having elapsed since NWM was last seen or heard from, I am satisfied that the court should declare that NWM is presumed to have died. There is no evidence which raises any question that NWM is alive and the Plaintiff has no reason to believe that he was alive, at any time during the last 50 years, or that he is currently alive, which would rebut the presumption of death. This is not a case where the Court is able to make any determination as to what happened to NWM.
The effect of the presumption is to give rise to a conclusion that, at the time of the proceedings, NWM is no longer alive. There is no presumption as to when NWM died. It is not presumed death occurred on any particular date during the period that he has not been heard from.
As there is no person, other than the Plaintiff, who is seeking the grant of administration, and as there is no opposition to the grant being made to her, I am satisfied that the grant of administration should be made to her.
In the circumstances, the persons identified as the siblings of NWM who are alive, and the issue of the siblings of NWM who died before these proceedings were commenced, should share the estate.
Section 40B(3) of the Probate and Administration Act provides that: 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.
I am satisfied, taking into account the period of time that has elapsed since there has been any contact with, or communication from, NWM, that leave to distribute should be given unconditionally.
In all the circumstances, it is appropriate that there be an order that the Plaintiff's costs, calculated on the indemnity basis, be paid out of the estate of NWM.
The Court: 1. Declares that the Court is satisfied that Neil Walter Morison, on presumption of death, is no longer alive. 2. Declares that the Court is satisfied that Neil Walter Morison left no Will. 3. Notes that the persons who are, or who may be, entitled to share the estate of Neil Walter Morison under the operation of the rules of intestacy, each consents to the Plaintiff being appointed to administer the estate of Neil Walter Morison on intestacy. 4. Orders that administration, on presumption of death only, of the intestate estate of Neil Walter Morison be granted to the Plaintiff. 5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 6. Orders that the requirement of an administration bond and sureties be dispensed with. 7. Orders that leave be granted to the Plaintiff to distribute the estate as follows: 1. As to 20% of the residue of the estate to each of Ronald Phillip Morison, Thomas James Morison, Marion Elizabeth Francis and to the Plaintiff, Jill May Morison; 2. As to 4% of the residue of the estate to each of Alexander Charles Morison, Linda Anne Wood, Wayne John Morison, Rodney Mark Morison and Janine Louise Morison. 1. Orders that the Plaintiff's costs of the determination of these proceedings, calculated on the indemnity basis, be paid out of the estate of Neil Walter Morison.

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