You can only make a Family Provision Claim where the person whose estate you are challenging is dead. Quite clearly, the death of the testator is rarely ever in issue. But what happens where a person goes missing?

Presumption of Death

A person who has not been heard from for a period of 7 years by those persons who would be expected to have heard from them, may be presumed dead.

The presumption applies where there is no evidence of death. The Court will not make a determination of when the person died but will merely hold that they may be presumed dead at the time of the relevant legal proceedings. Reasonable inquiries into the whereabouts of the person must be made before the Court will presume them to be dead.

The mere fact that someone has not been heard from for 7 years does not automatically give rise to a presumption of death. It is a question of fact to be determined by the Court with regard to the evidence, including any evidence which provides a valid explanation as to why the person has not been heard from.


The Facts

Wiehong was born in China in 1968. She had one child, the plaintiff, with her ex-husband. Following her separation in 1999, her ex-husband was granted primary custody. Wiehong moved to Australia to join the Defendant, who she had previously been in a relationship with, and they were married in 2000. Whilst living in Australia, both Wiehong and the defendant travelled back to China at various points. Wiehong kept in regular contact with her parents and her daughter and was in the process of organising to bring her daughter to Australia.

In April 2001, Wiehong told the Defendant that she wanted to go back to China to (amongst other things) organise to bring her daughter to Australia. The defendant dropped her off at a bus stop with her handbag and suitcase, and that was the last time the defendant saw her. In late 2001 the defendant travelled to China to make enquiries about Wiehong whereabouts. Wiehong’s brother attempted for several months to contact her by phone and email. In January 2002, a friend acting on behalf of Wiehong’s family, reported her as a missing person.

A missing persons investigation was undertaken. It was concluded that Wiehong had not left Australia in 2001. While there was a suggestion raised that she and her ex-husband had been attempting to migrate to Canada and that she had left Australia on a false passport, this was never proven. Further, inquiries undertaken in Australia found that her Medicare card had expired in 2003, and she had not claimed any medical services since 2001. Nor were there any records of Wiehong with the RMS or Centrelink. Further, her mobile phone had not been used since April 2001.

The circumstances of Wiehong’s disappearance were deemed suspicious by the Police; however, here was no evidence linking anyone to her death, and no charges were ever brought against any person.

The Decision

Here, the Court concluded that Wiehong could be presumed dead, given the following:

  • She had been missing for over 20 years; and her daughter, siblings, parents and her ex-husband had not heard anything from her since April 2001.
  • Her disappearance was unexpected and unexplained, and there are no established facts which would provide a reason why she would have wished to not be heard from for the last 20 years.
  • Her body had not been discovered or identified.
  • Due inquiries had been made, including contacting the police and reporting her has a missing person.
  • There is was no evidence which raised an issue they she may still be alive, and neither of the parties have any reason to believe that she is still alive.

The Takeaway

Where a person disappears and has not been heard from for a period of 7 years by their friends, family or colleagues, they may be presumed dead. If the presumption of death applies, and the person has left property behind, the Court may distribute their estate according to their will or the rules of intestacy, and deal with  any family provision claims accordingly.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.