Missing confirmed deceased

Estate of Lyn Burtonwood [2020] NSWSC 715
Supreme Court of New South Wales
Hallen J
This case involved a ’procedural issue’ asking for a judgment concerning the manner in which Letters of Administration of deceased ’should be described’.  The Coroner had determined that the deceased was dead even though the body of the deceased had not been found.  An Inquest was held to make findings confirming that the deceased had died and when, where, by what cause and in what manner it occurred.  There was evidence which supported a conclusion that the deceased had died on 16 February 2019, even though the body had not been located.  There was a decision about whether there was sufficient evidence which supported the ’deceased having died within a short period of having gone swimming’.  The Court was satisfied to to grant letters of administration of a testamentary document without inclusion of “on presumption of death” based on the  ’preponderance of probabilities’.

His Honor concluded;

  1. “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.
  2. 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.
  3. 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.
  4. 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”.”