Presumption Of Death

For legal purposes in NSW death is defined as being:

(a) irreversible cessation of all functions of a persons brain; or

(b) irreversible cessation of circulation of blood in the persons body.

However, this definition only applies where there is a body.  In many cases, people go missing and are never seen again.  This could occur in rock fishing, sailing, hiking and mountain climbing, natural disasters and the like.

A person wishing to prove an entitlement founded upon a person having survived another person must, at common law, prove that fact.  Where the Supreme Court is satisfied by direct evidence or on presumption of death, that a person is dead, the Court shall have jurisdiction to grant probate of the deceased’s persons 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.

Where a person is not heard from for a period of 7 years by those persons who would be expected to have communication with that person, then a Court may presume that person dead. This period may be less depending on the circumstances of the disappearance.

Cases based on the presumption of death must be distinguished from cases where the Court is able to infer death in the absence of a body from the circumstances of disappearance, such as an aircraft disappearing over water.

Where two or more persons have died under circumstances rendering it uncertain which are then survived, the death 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.

If you require assistance in this complex area of law, then our accredited specialist, Peter Baltins, can assist you.