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Proving death for an application of probate or letters of administration

Posted by Benchmark Lawyers in Probates & Powers of Attorney | 0 comments

Re Paul Allen Weeks; ex parte Weeks [2016] WASC 25

Keywords: indirect proof of death – MH370 flight- presumed to be dead – hearsay evidence – leave granted

The issue in this case is: How do to you prove death, when there is no death certificate or the body has not been found, for an application for probate or letters of administration?

This case hinges upon the missing flight MH370 which took off from Malaysia but never reached its destination.

Background

The wife drove the husband to the airport on 7 March 2014. Mr Weeks was travelling to Mongolia via Kuala Lumpur (KL) and Beijing. Evidence confirmed that Mr Weeks reached KL and boarded Malaysia flight MH370 to Beijing which notoriously disappeared. There is no trace of Mr Weeks or any other passengers on board the flight so there was no way for Mrs Weeks to provide solid evidence that her husband has passed away.

Therefore, Mrs Weeks is applying to swear to the death of Mr Weeks which will allow her to apply for letters of administration.

The Law

In an application for probate or letters of administration, the applicant has to show that the person whose estate is subject to probate has passed away. This is shown by way of a certificate of death by the Registrar of BDM. In this case, it was impossible to show such evidence, thus the applicant had to swear to the death or to adduce evidence of death. This is to be distinguished from the court’s power to declare that a person is presumed dead. The former is when there is no direct evidence of death but death is presumed to have taken place.

Evidence

The evidence relied on was the wife’s affidavits. The court was satisfied that the wife drove Mr Weeks to the airport and that he boarded the flight from Australia. The court was also satisfied that Mr Weeks was continuing his journey to Beijing as Mr Weeks sent an email to his wife when he reached KL that talks about his onward trips. The wife’s affidavit also deposes that she identified Mr Weeks from photographs of CCTV footage at KL international airport which were shown by the AFP.

The court was also satisfied that Mr Weeks boarded MH370 at KL international airport. There were also other material attached to the affidavit of advice from Malaysia Airlines and the Malaysian government. Although these are hearsay, the Judge had to take note of it. All those who boarded the flight, including Mr Weeks were presumed dead. The court was satisfied and granted leave to the wife to swear to the death of her husband so she could apply for letters of administration.

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