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[2025] NSWSC 906
General information, not legal advice.
Supreme Court of NSW
2025-08-12
Slattery J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Francis v Francis [2025] NSWSC 906
Hearing dates: In Chambers
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Slattery J
Decision: No declaration made as to the order of deaths of the plaintiff’s father and mother. Grant of administration of the intestate estate of the plaintiff’s father made on presumption of death to the plaintiff. Grant of administration made to the plaintiff of the intestate estate of the plaintiff’s mother. Other consequential orders made.
Catchwords: SUCCESSION – administration of estates – application for administration of an estate upon presumption of death and upon intestacy – plaintiff has had no contact with her father, the defendant, for
25 years – plaintiff seeks a declaration that her father is presumed to have died before her mother who died in 2020 – plaintiff seeks administration of her mother’s estate on intestacy – discussion of Conveyancing Act 1919, s 35.
Legislation Cited: Conveyancing Act 1919 (NSW), s 35
Probate and Administration Act 1898 (NSW), ss 40B and 63
Succession Act 2006 (NSW), Chapter 4
Cases Cited: Application of Morison; Re Morison [2022] NSWSC 1758
Application by Walsh (Estate of Robert Charles Walsh) [2020] NSWSC 976
Axon v Axon (1937) 59 CLR 395
Estate of Dixon (1969) WN (Pt1) NSW 469
Guo v Guo [2021] NSWSC 1059
Halbert v Mynar [1981] 2 NSWLR 659
Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984)
Re Albert [1967] VR 875
Texts Cited: Dal Pont, Law of Succession (3rd ed, LexisNexis Butterworths, 2021)
Janes, S, Liebhold, D and Studdert, P, Wills, Probate and Administration Law in NSW (Lawbook Co, 2nd ed, 2020)
Category: Principal judgment
Parties: Plaintiff: Sheila Ingrid Elizabeth Francis
Defendant: Gary Lloyd Francis
Representation: Counsel:
Plaintiff: P Wallis
Defendant: N/A
Solicitors:
Plaintiff: Attwood Marshall, Solicitors
Defendant: N/A
File Number(s): 2024/47775; 2025/154293
Publication restriction: No
The plaintiff, Sheila Ingrid Elizabeth Francis (Sheila) is the daughter and only child of the defendant, Gary Lloyd Francis (Gary) and Pearl Elizabeth Francis (Pearl). Sheila has had no contact with Gary since approximately 2001. His whereabouts are unknown after extensive search and enquiry. Pearl died in 2020. By her Summons in these proceedings, Sheila seeks a grant of administration of Gary’s estate upon presumption of death and upon intestacy and Pearl’s estate upon intestacy under Probate and Administration Act 1898 ss 40B and 63. She also seeks in the alternative a declaration that Gary held a property that he and Pearl owned as joint tenants on trust for Pearl. These reasons explain why the Court grants her application.
Many of the parties and other actors in these proceedings have or had the same surname and for convenience the first names of many of them were used in evidence and submissions. Without intending any disrespect to any person, the Court adopts the same practice in these reasons.
This matter was dealt with in the probate list on 6 May, 3 June and 15 July 2025 and then reserved for further consideration in chambers. Mr P Wallis of counsel appeared for Sheila, instructed by Lucy MacPherson of Attwood Marshall, Solicitors. Gary was not legally represented and did not appear.
The following is a narrative of findings of the relevant history which has some complexity and involves the estates of both Gary and Pearl and events involving Pearl’s family members.
Gary was born in 1956 in Australia. Pearl was born in 1949 in India and migrated to Australia in 1974 via Hong Kong. They married in April 1978 but separated in February 1980 and never lived together thereafter. Neither of them sought a divorce. Sheila was born in 1979. Pearl died in August 2020.
After their separation Pearl purchased a property in the Sydney suburb of St Clair in 1982. The title details of the St Clair property are fully identified in the Summons in these proceedings and for convenience it will be referred to as “property 41” in these reasons, to distinguish it from a nearby property in the same street in St Clair which also features in these reasons.
Pearl was not able to obtain finance to purchase property 41 on her own, so she cooperated with Gary and they purchased the property as joint tenants, and they obtained finance over it as security as joint mortgagors. Despite these title arrangements, Gary never lived in property 41.
Gary and Pearl did not have any other children after Sheila was born in 1979. Gary only had limited contact with Pearl and Sheila after his separation from Pearl. By the time Sheila reached her teenage years, her contact with her father became limited to a few formal occasions, such as signing passports and the discharging the mortgage over property 41. Contact ceased altogether in 2001.
Pearl appears to have wanted to have other members of her family close to her after her separation from Gary. Together with other family members as joint tenants, namely her brother, Louis Eugene Ernest Tham, and her parents Michael and Sheila Tham, Pearl purchased a property only two doors away from property 41, in the same street in St Clair. This second property will be referred to in these reasons as property 45. Members of the Tham family lived in number 45 for many years. Sheila is very attached to number 45 and now wishes to purchase it from the trustees for sale who now hold its title, in circumstances explained below.
Pearl was industrious and managed to pay off and discharge the mortgage over property 41 by about 1997, entirely by her own efforts working as an accountant. It is strongly inferred that Pearl met all the mortgage repayments over property 41 only using Gary’s name on the title to assist her in obtaining finance. The Court is comfortably satisfied of this from several matters: Gary’s absence from the household from before property 41 was purchased, the lack of evidence of any family law proceedings or maintenance order being made in Pearl’s favour after Gary left the household, Sheila’s lack of memory that Gary gave any financial support to the household, and Pearl’s continuous paid employment whilst the mortgage was being paid off.
Gary attended his mother’s funeral on 7 January 2001. So did Pearl and Sheila. They saw him there. But after that he disappeared. He made no further attempts to contact with them, and they each had no idea where he had gone. Gary’s mother’s death meant that he inherited property in Rosebery. Property searches show that he sold this Rosebery property in June 2002. There is no other evidence of any transaction traceable to him after that date.
Extensive searches have been made for Gary since he was last seen in 2001. A skip trace search company, Quantumcorp, was engaged and has undertaken extensive inquires to look for Gary. But he has not been found. Gary had two brothers, Leonard and Barry, who might have known his whereabouts, but they have both since died.
Pearl’s parents died in the early 2000s. Sheila Tham died in January 2005 and Michael Tham died in July 2009. That left Louis and Pearl as joint tenants of property 45.
By 2019 Louis was under a legal disability. Trustees for Louis commenced proceedings in this Court in 2019 seeking orders for the appointment of trustees for sale over property 45 under Conveyancing Act 191**9, s 66G (proceedings 2019/251215 – the “trustees for sale proceedings”). In the trustees for sale proceedings, the Court appointed John Alexander Mann and Benjamin John Dornan as trustees for sale of property 45.
The management of property 45 has had its complications. As Pearl died before Louis, property 45 passed by operation of law to Louis on her death in August 2020. The timing of Gary’s death is irrelevant to the passing of title to property 45 to Louis.
Louis died in August 2022 in Victoria. He died after his parents and without issue. Having been predeceased by his only sister Pearl but survived by her only child Sheila, subject to other third-party claims, Sheila is entitled to Louis’ share of property 45: Succession Act 2006, s 129(3).
But there was another claim against Louis’ estate. A woman who contended that she was Louis’ de facto wife at the time of his death made a claim and commenced proceedings against his estate. This and another claim in legal proceedings in Victoria were resolved in February 2025 by a Deed of Family Arrangement (also referred to as the “Deed of Settlement”). Sheila had been appointed to represent Pearl’s estate in those proceedings. The Victorian State Trustees represented Louis’ estate. Pursuant to that Deed of Family Arrangement, it was agreed that the executors of Louis’s estate would upon the sale of property 45 pay 50% of Louis’s half share of the proceeds of sale of property 45 to Pearl’s estate – subject to payment of the costs of the trustees in the trustees for sale proceedings.
Sheila has been living in number 45 for some time. She wants to stay there. She was hoping to use the proceeds of sale of property 41 to buy out the other interests in property 45 pursuant to right given to her under the Deed of Settlement. But there are also 5 years’ costs of the trustees to cover and she did not move quickly on resolving the administration of Gary’s estate. In November 2024, the trustees for sale obtained judgment and a writ of possession against Sheila in proceedings that they commenced against her in the Common Law Division of this Court (proceedings 2024/47775 – the possession proceedings). When the probate issues now under consideration first came before the Court on 6 May 2025 that writ for possession was stayed until further order. But it was stayed on terms that Sheila should place property 41 on the market within 3 months of being appointed administrator of Pearl’s estate.
The Court can either presume or infer Gary’s death. If the former, then it may grant administration of his estate under the provisions of Probate and Administration Act, s 40B. In this case there is no evidence that Gary made a will, so a grant of administration would be made. But first the Court must decide whether a presumption or an inference of his death is warranted on the evidence.
No direct or circumstantial evidence points to Gary having died. Nothing in the manner in which he ceased contact with his family or his health or his way of life point to him being likely to die in the near term after 2001. But he can be presumed dead.
Sheila has not or seen or heard from him since 2001. He has not contacted either Sheila or Pearl, with whom objectively it is to be expected he would have communicated. There is no one else known to Sheila with whom he is likely to have communicated. The extensive searches which have been undertaken for him, which need not be elaborated in detail in these reasons, have been very thorough and do not show any trace of him. These searches have encompassed revenue authorities, police, social security authorities and public registers. Apart from attempts at communication, there have been no indirect indications that Gary might be alive, such as, for example, evidence of operating a bank account or his registration on an electoral roll.
The classic Australian statement of when the law will presume the death of a person is the judgment of Dixon J in Axon v Axon (1937) 59 CLR 395, at 403 and 405 where his Honour first distinguished (at 403) between proof of death by direct testimony, by circumstantial evidence or presumption of law, and in the case of presumption said (at 405):
“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 communication 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 authorises 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.”
Axon has often been applied was recently discussed by Hallen J in Guo v Guo [2021] NSWSC 1059; and see the authorities collected there. There is no direct evidence of Gary’s death nor is there any circumstantial evidence that which would point to his death. This is a case where nothing has been heard from him, and nothing points either way as to whether he is dead or alive. The only way to infer death in a case such as this is to give effect to the legal presumption of death in the circumstances described by Dixon J in Axon.
Sheila has discharged the onus of establishing the presumption of Gary’s death. She has not heard from him for at least seven years. There are no facts supporting any counter inference that he was alive during this seven-year period. The seven-year period which commenced in 2018, commenced 17 years after he was last seen and 16 years after the last evidence of any action (selling his mother’s property) on his part. The Court is comfortably satisfied that it should at the time of this hearing draw the inference of the presumption of his death.
A grant of administration of Gary’s estate can therefore be made under Probate and Administration Act, s 40B which provides as follows:
“40B Presumption of death
(1) If a grant of probate or administration is made on presumption of death only, the provisions of this section shall have effect.
(2) The grant shall be expressed to be made on presumption of death only.
(3) The estate shall not be distributed without the leave of the Court. The leave may be given in the grant of probate or administration or by other order, and either unconditionally or subject to such conditions as the Court deems reasonable, and in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that the person will restore any money or property received by the person or the amount or value thereof in the event of the grant being revoked.
(4) The Court may direct the executor or administrator before distributing the estate to give such notices as the Court deems proper in the circumstances, in order that the person whose death has been presumed, if the person is still living, or if the person has died since the date of the grant, then in order that any person interested in the estate may lodge with the Registrar within such time as may be specified a caveat against the distribution. If the Court directs any such notice to be given, the executor or administrator shall not have the benefit of section 92, unless the executor or administrator complies with the direction. If a caveat is duly lodged within such time as may be specified, the executor or administrator shall not distribute the estate until the caveat is withdrawn or removed.
(5) An application for leave to distribute the estate and for directions may be made, and a caveat may be lodged withdrawn or removed, as prescribed by the rules, and the Court may make such order in respect of costs and otherwise as it deems proper.
Sheila is Gary’s sole surviving next of kin. She is a person to whom a grant of administration may be made under Probate and Administration Act, s 63(b). She is the most appropriate person to whom a grant of administration of his estate should be made, as she is entitled to the whole of his estate on intestacy, as his sole surviving child: Succession Act, s 127(1). The Court will grant administration of Gary’s estate to her.
A legal representative of Pearl’s estate should also be appointed. She died intestate. The presumption of Gary’s death means that Sheila is Pearl’s sole surviving next of kin. She is entitled to the whole of Pearl’s estate on intestacy as her sole surviving child and she should also have a grant of administration of Pearl’s estate under Probate and Administration Act, s 63(b). Under the Deed of Settlement of the Victorian proceedings, Pearl’s estate receives some of the proceeds of sale of property 45. Someone with proper authority should be appointed to receive and administer that fund on behalf of Pearl’s estate. Sheila should be appointed and is appointed in the orders made with these reasons.
The question remains as to whether property 41 passes to Sheila by operation of law into Gary’s estate or into Pearl’s estate. If Pearl died first, it would pass through Gary’s estate. If Gary died first it would pass through Pearl’s estate. The date of Pearl’s death in August 2020 is certain. But the date of Gary’s death is uncertain. Whether Gary or Pearl died first, either way property 41 will pass to Sheila by application of Succession Act, s 127(1).
These reasons discuss below the difficulties in attempting to infer which of Gary or Pearl died first and the pathway that property 41 takes to Sheila. Those difficulties ultimately do not impair Sheila’s entitlement to property 41.
The passage in Axon cited above makes clear that the presumption of death, which the Court has applied, is limited to presuming that at the time of these proceedings Gary is deceased. The application of the presumption does not resolve whether Gary died before or after Pearl.
Mr Wallis submitted on behalf of Sheila that the Court should infer that Gary predeceased Pearl based upon his long absence and lack of communication with her and Sheila. But as has been discussed above this submission is not persuasive. There is nothing on the sparse evidence in this case other than Gary’s long absence to infer that Gary died before August 2020. All that can be acted on is the legal presumption that he is now dead.
Mr Wallis next submitted that this issue can be resolved by the application of Conveyancing Act, s 35 which provides as follows:
“Presumption of Survivorship
“In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.”
“Death which is presumed by reason of unexplainable absence is no less a fact because it arises by presumption of law, and in my view is just as much a death falling within the terms of the section as any other death. I therefore hold that s 35 includes the case of death presumed from an absence of seven years, where the common law presumption of death applies.”
But there have been other considered decisions to the contrary. In Re Albert [1967] VR 875, Lush J pointed out that application of the Victorian equivalent of s 35 could produce anomalous results and declined to apply it. In New South Wales in Halbert v Myna**r [1981] 2 NSWLR 659 (Halbert*)* Waddell J (as his Honour then was) declined to follow Dixon*,* pointing out that Re Albert had not been cited to Helsham J in Dixon and that Helsham J did not have the benefit of contested submissions in Dixon*.*
The decisions of Albert and Halbert were considered and applied in Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984). The issue has been discussed in Application of Morison; Re Morison [2022] NSWSC 1758; Guo v Guo [2021] NSWSC 1059; Application by Walsh (Estate of Robert Charles Walsh) [2020] NSWSC 976; and see the discussion in Dal Pont, Law of Succession 3rd Edition, LexisNexis, at 11.6, 11.7, and 11.83 to 11.87 and in James, Liebhold and Studdert, Wills, Probate and Administration in New South Wales, Thomson Reuters, 2020, [PAA 40A.60-70].
In *Public Trustee v Attorney-*General, Cohen J proposed a possible solution to the difficulties that arise in cases such as these. He proposed that evidence of the health of a person who had disappeared when last seen should be sought, so that an inference might be drawn of the continuance of life beyond the death of the other joint tenant. Such evidence was useful to resolve the issue before Cohen J but is not available in this case.
The Court cannot resolve through which estate Sheila inherits property 41 on the intestacy of her parents. But the Court does not need to resolve this question, as no other outcome is possible. But this case illustrates a need for law reform to ensure that s 35 covers uncertainty in the order of death where the presumption of death is applied.
Property 45 has been dealt with earlier in these reasons and the appointment of Sheila as administrator of Pearl’s estate will ensure that there is someone to deal with the trustees under the Deed of Settlement of the Victorian proceedings.
The Court’s findings would also justify the alternative relief sought in prayer 7 of the Summons of a declaration that Gary held his interest in property 41 on resulting trust for Pearl. This alternative relief may provide a clearer path for the transmission of the property to Sheila and may perhaps be more cost efficient to implement. The Court has granted liberty to apply in the orders below and that declaration could be made in chambers if required before the matter next comes back before the court on 21 October 2025 for further directions. On that date the plaintiff can also apply for any further leave for distribution or directions as may be required in relation to the grant made under Probate and Administration Act*,* s 40B(3) and (4).
The Court indicated that it would hear submissions upon the formal final orders depending upon the conclusions that were reached. The orders made below are therefore subject to the Court hearing further submissions as to their form. The parties to the settlement of the Victorian proceedings should be informed of these orders to facilitate implementation of that settlement.
For these reasons the Court makes the following orders and directions.
The Court:
GRANTS administration of the intestate estate of Gary Lloyd Francis to the plaintiff, Sheila Ingrid Elizabeth Francis on presumption of the death of Gary Lloyd Francis;
GRANTS administration of the intestate estate of Pearl Ingrid Elizabeth Francis late of St Clair to the plaintiff, Sheila Ingrid Elizabeth Francis;
ORDERS that in respect of the grants of administration in (1) and (2) there be dispensed with:
(a) any requirement for sureties or an administration bond; and (b) any requirement to further advertise the plaintiff’s application for administration.
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Francis
Francis [2025] NSWSC 906
(1937) 59 CLR 395