According to the Australian Federal Police, more than 38,000 people are reported missing annually. Most are located but there are still around 1,600 who’ve been missing long term.
Missing people can come from all walks of life. Some are destitute, but many are not. They may still have bills, a mortgage and/or child support to pay, an investment property that needs managing or an unresolved legal matter to deal with.
These types of issues can cause enormous problems not only for the missing person but also for families, friends or business associates left behind. Most people haven’t appointed an attorney who could attend to these matters.
Several years ago, we wrote about the need for Queensland’s laws to be updated to specifically address this problem. Finally, our laws are being changed to do just that.
So, what exactly can be done about the assets of a missing Queenslander? The answer, unfortunately, depends on how long the person has been missing and whether they’re likely to still be alive.
A temporary (but important) solution
Previously, the Queensland Civil and Administrative Tribunal (QCAT) took a rather bizarre approach to deal with the problem. QCAT held that a missing person was a person with “impaired capacity” (someone who could not understand their decisions and could not make decisions freely).
This allowed QCAT to exercise its protective jurisdiction and is what happened in BEC [2013] QCAT 709, where we acted for the missing person’s brother. That approach was not ideal as arguably a missing person may have all their mental faculties and be able to communicate decisions freely.
Since then, the Guardianship and Administration Act 2000 (Qld) has been updated so that if someone is missing for at least three months, QCAT will have the power to appoint an Administrator to manage his/her financial (and legal) affairs, provided there is a particular need to do so.
The application can be made by just about anyone associated with the missing person and closes what was a significant gap in Queensland’s laws.
What if it’s relatively clear the missing person is deceased?
Generally, the courts infer that a person is still alive unless it’s proven otherwise. There can be times when a missing person is likely to be deceased, but it cannot be proven outright.
If there is a need to attend to (or finalise) the missing person’s affairs, and there is no coronial investigation into the person’s disappearance, assistance would need to be sought from the Supreme Court.”
If the Court is satisfied that the relevant person has been missing for at least seven years, and there’s sufficient evidence of danger to the person’s life at the time of disappearance, the Court may presume that the person is deceased and make a declaration to that effect.
However, if it hasn’t been seven years since the disappearance but there is a pressing need to administer their estate (or there can be no doubt that the person is deceased), one can apply to the Court for ‘leave to swear death’. To succeed, the Court must be satisfied on the balance of probabilities that the missing person has died. This can be very difficult and requires compelling evidence. For example:
- The circumstances of Malaysia Airlines Flight 370 are well known. It disappeared in March 2014 after leaving Kuala Lumpur destined for Beijing with 239 people (including Australian citizens) on board. Around two years later, a person was granted leave by the Supreme Court of Western Australia to swear to the death of her husband who unfortunately was a passenger on the flight (Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25).
- One man went missing after leaving his accommodation in Bali to go surfing by himself. Remnants of the man’s surfboard were later discovered by a local dive master. Less than one year after the incident, the man’s wife made an application to the Supreme Court of Queensland and satisfied the Court that he was deceased. She was granted leave to swear to her husband’s death (Maynard v The Estate of Maynard [2015] QSC 144).
Once the Court makes a ‘declaration of death’ or gives ‘leave to swear death’, a death certificate can be issued, and steps can then be taken to administer the person’s estate (based on the Will, or based on the state legislation if there is no Will).
What if the missing person is a beneficiary of a deceased estate?
Sometimes, a beneficiary under a Will may be missing. It may be that no one knows whether the beneficiary is even still alive. This means the representative of the deceased estate (executor or administrator) cannot complete their job and finalise the administration of the estate.
One option available to the estate representative is to apply to the Court for what’s known as a “Benjamin Order”. If the Court is satisfied that all reasonable steps were taken by the estate representative to locate the missing person and that it’s probable that person is deceased, the Court can make orders allowing the estate representative to administer the estate. For example, the Court could declare that the missing person died before the testator, which would mean that the gift in the Will does not apply.
How can we help?
It is strongly advisable that you seek legal advice prior to commencing any application in the Court.
Bennett & Philp Lawyers are legal experts who offer timely, pragmatic and cost-effective legal solutions. We are great listeners and excellent problem solvers who always strive for the best outcome for you and your family. Click here to find out how we can help.
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