HIS HONOUR: This short judgment concerns a procedural issue which has been referred to me by the Senior Deputy Registrar in Probate. It concerns how Letters of Administration of the estate Lyn "Raz" Burtonwood (the deceased) should be described in circumstances where, whilst the Coroner, Magistrate K E Stafford, determined that the deceased is dead, the body of the deceased has not been found. The Inquest was "held to make findings confirming that [the deceased] [had] died and if so when, where, by what cause and in what manner it occurred". (Because his body was never found, the incident was treated as a suspected death and an inquest was mandatory.)
[2]
Background
It is first necessary to provide some background. I take the unhappy circumstances which lead to this application from the findings of her Honour, sitting as Coroner, published on 3 October 2019, following the inquest into the suspected death of the deceased conducted on that date. A copy of the Findings and Recommendations was provided in response to a requisition issued by the Senior Deputy Registrar in Probate.
On 16 February 2019, the deceased was rostered, with other members of the Ballina Lighthouse and Lismore Surf Life Saving Club, for morning surf patrol at Lighthouse Beach, Ballina, in the Northern Rivers region of New South Wales. He was a fit 69 year old man who regularly attended the Beach, on a Saturday, for an ocean swim.
At 8:40 a.m., the deceased arrived at Lighthouse Beach. He jumped into the water to test the conditions, as he often did. Other patrol members watched him as he swam. The following findings are taken directly from the findings of the Coroner:
"Patrol members lost sight of him and began scanning the water with binoculars. Unable to see him, they launched an inflatable rescue boat but still could not locate him. The search continued over the next several hours and expanded to include jet skis, drones, helicopters and the SES. The search continued until light fell and resumed the following morning. The search covered Black Rock, east Ballina in the north to Yamba in the south and 3 nautical miles out to sea.
Unfortunately, [the deceased] was not found during the search. He has not been seen since.
…
[The deceased] headed off towards the steps towards Speeds between 9:00 and 9:15am, carrying his body boarding flippers. A number of experienced club members and far north coast representatives were watching the surf to assess whether the conditions were suitable to conduct a surf carnival the following day.
[The deceased] came into view at about 9:25am at the northern end of Lighthouse Beach, bodysurfing dumping waves. It is not unusual in those conditions to lose sight of a swimmer. He caught some waves at the front of the surf club. He did not seem to be in any trouble. [E] last saw [the deceased] out the back, about 130 metres south of the Surf Club. [W] last saw him about 200 metres south of the rocks and 150 metres from the shore.
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I am satisfied that his Ballina lifeguard colleagues started the search as quickly as possible and that they, other surf life savers, and members of the SES, Marine Rescue and other emergency services did all that could have been done to attempt to locate and rescue [the deceased] and that when that failed, to recover his body.
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I especially commend the Ballina Lismore Surf Life Saving Club volunteers who undertook searches in difficult conditions for a man who was their colleague and friend.
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FINDINGS REQUIRED BY SECTION 81(1)
As a result of considering all of the documentary evidence, I am able to confirm that the death occurred and make the following findings in relation to it.
THE IDENTITY OF THE DECEASED
The identity of the deceased person is Lyn "Raz" BURTONWOOD.
DATE OF DEATH
Mr BURTONWOOD died on Saturday 16 February 2019.
PLACE OF DEATH
He died in the sea at Lighthouse Beach, NSW.
CAUSE OF DEATH
The cause of Mr BURTONWOOD's death was by drowning.
MANNER OF DEATH
Mr BURTONWOOD accidentally drowned."
Nothing in the Coroner's findings suggests that there was any evidence that the deceased's death was suspicious and not as a result of him accidentally drowning.
On 13 December 2019, a Death Certificate was issued pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW). The deceased's date of death was shown as 16 February 2019 and the cause of death was stated as "Drowning" with the "Body Not Recovered".
It would not be within the mandate prescribed by s 56 of the Civil Procedure Act 2005 (NSW) to require the Plaintiff to obtain an affidavit from each of the persons who gave evidence at the Inquest, when there is a detailed exposition of his, and her, evidence in the Coroner's findings.
[3]
The Proceedings
The proceedings, initially, came before the Court by Summons filed on 7 January 2020. The Plaintiff was Che Burtonwood, one of the three, now adult, children of the deceased. The first Defendant was Kim Lenorah Raguse, who asserted that she was, at the date of his disappearance, and had been since about 2005, a person with whom the deceased was living in a de facto relationship. The second Defendant, Kye Justin Burtonwood, and the third Defendant, Jemma Tegan Burtonwood, are both children of the deceased. Each filed a submitting appearance in these proceedings.
The Plaintiff sought administration of a document dated 25 April 1990. Whilst there was a signature on the document, which the parties agreed was that of the deceased, the signature does not appear to have been made, or acknowledged, by him in the presence of two or more witnesses, present at the same time, at least two of whom attested and signed the document in the presence of the deceased (but not necessarily in the presence of each other) in accordance with Pt 2.1 of the Succession Act 2006 (NSW).
Having read the evidence filed in support of the Summons, and with the consent of all the affected persons, on 18 May 2020, I declared that the Court was satisfied that the document dated 25 April 1990 signed by the deceased purported to state the testamentary intentions of the deceased; that it had not been executed in accordance with Pt 2.1 of the Succession Act; and that it formed the deceased's Will, as he had intended it to form his Will. I ordered, subject to compliance with the Probate rules of Court, that Letters of Administration with the Will dated 25 April 1990 of the deceased annexed be granted to Che Burtonwood, the Plaintiff. I then remitted the matter to the Senior Deputy Registrar in Probate to complete the grant.
Following the remittal to the Senior Deputy Registrar in Probate, she referred the matter back to me with a concern about how the grant should be described in the Probate parchment.
[4]
The Issue
Section 81 of the Coroners Act 2009 (NSW), relevantly, provides that "[t]he coroner holding an inquest concerning the death or suspected death of a person must, at its conclusion or on its suspension, record in writing the coroner's findings … as to whether the person died and, if so - (a) the person's identity, and (b) the date and place of the person's death, and (c) in the case of an inquest that is being concluded - the manner and cause of the person's death".
Section 40A of the Probate and Administration Act 1898 (NSW), relevantly, provides:
(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.
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: New South Wales (LexisNexis Butterworths) at 9234 [5067]; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) at 636.
In the text last referred to, there is reference to the meaning of the term "inference of death". The learned authors write at 635-636:
"In appropriate circumstances, an inference of death can be made where less than seven years has elapsed, and, indeed, in many, perhaps most, cases of disappearance, there is sufficient evidence to enable the court to infer death, and to decide that the death occurred within a comparatively short time of the disappearance." (citations omitted)
In my view, an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.
Proving death by inference when a person has disappeared was described by Sachs J (as his Lordship then was) in Chard v Chard [1956] P 259 at 270 as:
"… generally speaking, a matter in each case of taking the facts as a whole and of balancing, as a jury would, the respective probabilities of life continuing and having ceased."
It is unclear whether the term "presumption of death" in s 40A covers cases referred to as "inferred death", as well as what can properly be described as a "presumed death".
Section 40B of the Probate and Administration Act, relevantly, 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.
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 is, in fact, dead. A common way of satisfying that requirement is by production of a certificate of death. A certificate of death issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act, s 49(2).
As a general rule, the forms for a grant of probate or letters of administration include provision for the date of death of the deceased person to be inserted. If a grant has been made on the presumption of death, it is not possible for the court, or a registrar to complete this requirement, as the deceased's death is not presumed to have occurred on, or about, a particular date.
Lee J in Re Parker [1995] 2 Qd R 617, 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 common law presumption of death is a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395; [1937] HCA 80. Dixon J (as his Honour then was) stated 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:
"... the application of the rule does not establish death at any particular time (In re Phené's Trusts). 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)."
There are some cases in which a grant of probate has been made in circumstances where death has been presumed after a period of less than seven years. An obvious example is where a person drowns at sea. (It is to be noted that under the law as it was when Prime Minister Harold Holt disappeared, an inquest could not be held without a body. The probate application in respect of his Will was made on the "presumption of death".)
In Mackay v Mackay (1901) 18 WN (NSW) 266 at 269, Owen J (Cohen and AH Simpson JJ agreeing), quoting with approval the law as stated in Taylor on Evidence, by way of example, wrote "… if the party, when last heard of, was aged, or infirm, or ill, or had since been exposed to extraordinary peril such as a storm and probable shipwreck". The Court, on the facts in that case, presumed that the man, who had been on the ship which was wrecked on a voyage to Brisbane, and who had not been heard of, or seen, again, had died in that shipwreck.
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.
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This is therefore a case where a grant of probate in common form is appropriate …"
In Re Bennett (2006) 1 ASTLR 199 at 200 [8]; [2006] QSC 250, Atkinson J in a case where the application to the Supreme Court of Queensland was made in 2006, less than seven years after the disappearance of the professional diver, whose body was never found, and when he was never seen, or heard from, again, granted leave to swear to death and, following that, letters of administration, observing that it was unnecessary to wait for the passing of seven years to infer death in such a case. Her Honour wrote:
"If, however, there is evidence before the Court from which the Court can safely infer that the person has died it is not necessary to wait the seven years for the Court to infer death."
Her Honour later referred to Re Bennett and followed it in Maynard v The Estate of Maynard [2015] QSC 144 at [6].
In In the Estate of Green [2020] SASC 90, an application was made pursuant to r 68 of the Probate Rules 2015 (SA) to swear the death of a missing person in respect of whose estate a grant was sought in circumstances where the missing person had disappeared on 15 December 2017 and had not been seen since and where his body had not been located.
Bampton J was satisfied that the evidence relied on in support of the application established that the missing person had accidentally drowned at sea near Hall Bay on Eyre Peninsula on 15 December 2017 and her Honour granted probate of the Will dated 1 May 2006 of the missing person to the executrix named in that Will.
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.
If the court is satisfied that the missing person has died and the date of death is clear, it will not be difficult to fix a time of death. The position would be less straightforward where there is sufficient evidence to support a finding that the missing person has died but little or no basis for determining when it occurred.
In either case, the general rule that the standard of proof in civil cases is the balance of probabilities applies. However, what evidence will be sufficient to justify a finding of fact on the balance of probabilities may depend on the nature of the issue before the court.
In this case, the evidence is clearly supportive of the conclusion, notwithstanding no body having been located, that the deceased died on 16 February 2019. The evidence has been detailed in the Coroner's findings, and a summary thereof, has been quoted above. Those findings and the evidence in support thereof point, convincingly, although his body has not been found, to the deceased having died within a short period of having gone swimming. Furthermore, there is a complete absence of evidence that the deceased had such a compelling motive to disappear as would justify the inference that he might have set the stage, so elaborately, to give the impression that he had come to his death by drowning.
In my view, the preponderance of probabilities strongly favours a grant of letters of administration of the testamentary document without the need to include the words "on presumption of death".
[5]
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Decision last updated: 12 June 2020