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This article starts with a very basic principle – any death in South Australia must be registered and a death certificate issued.

In a typical situation one of the roles of a funeral director is to collect the information which is used to populate the death certificate, which is issued by the Registrar of Births, Deaths and Marriages. It is therefore important to make sure the information given to the funeral director is correct – if the death certificate is incorrect or incomplete this might cause issues later with obtaining a grant of probate or a grant of letters of administration.

If someone has died in a nursing home or a hospital, the process for getting a death certificate is usually straightforward. There are systems in place to notify the relevant authorities because it’s such a routine occurrence.

If someone dies outside of a controlled environment like a nursing home or hospital, there’s a slightly different procedure. If the death was expected – perhaps if someone had been in the terminal stages of a terminal illness and wished to die at home – the person’s doctor should be contacted. If the death was unexpected or apparently unnatural, the police should be called and this will likely result in the Coroner commencing an investigation.

If the exact cause of death is unknown there will be an interim death certificate issued while further investigations are undertaken by the Coroner. These further investigations may take several months or even years before a final death certificate can be issued. In some cases the Police will obtain a series of affidavits (written declarations) about who was last to see the person alive and who was the first to find the person deceased.

All of the above is based on the assumption that there is a body – but sometimes there isn’t.

If someone has gone missing and is presumed to be dead, but there is no identified body to prove it, neither the Police nor the Coroner have the power to make a determination that a death has actually occurred. The investigation will remain open until a body is found and identified. This means that the administration of the person’s estate will not be able to proceed until a body is found, which may take years – if a body is found at all.

So what happens if there is no body?

A person is presumed to be alive until they are declared dead. Until then nobody has authority to deal with the deceased person's assets (whether owned individually or jointly), superannuation or life insurance, and it may not be possible to replace the person as controller of a trust or company. The assets are effectively "frozen" and no one has authority to deal with them. Depending on the circumstances, this can result in difficulty and hardship for the person's family, employees and creditors.

If the person had made a power of attorney before they went missing, then in some respects things can "carry on" as if the person were still alive.

Fortunately, there is a legal process for declaring a missing person to have died. Under a combination of the Probate Rules 2015 (SA) and the Births, Deaths and Marriages Act 1996 (SA), a person can apply to the Supreme Court of South Australia and essentially ask the Court to make an Order for permission to swear death – ie an Order that the death of the missing person occurred on a particular date – and then that the Registrar of Births, Deaths and Marriages must produce a death certificate on this basis.

How does the application work?

The Court requires evidence regarding the background of the person; the circumstances of their disappearance and the account of any witnesses to the disappearance or the last person(s) to see the missing person alive, as the case may be. The Court also requires evidence regarding what has happened since the disappearance – both in terms of search efforts and in terms of whether there has been any activity which may suggest the person is still alive (for example bank account activity).

There is a presumption that if there have been no signs of life for seven years, the person has most likely died. In these circumstances the Court will make the Order. This presumption does not mean the process is automatic – to get the benefit of this presumption and to have the Order made, the applicant must still present all of the evidence to satisfy the Court that the person has disappeared and that there are no signs of life. It is still a complex legal process to go through.

Seven years is a very long time to wait. It is possible, however, to get an Order that a person has died before this seven year presumption takes effect. This depends on the circumstances involved.

In late 2019 there was a Supreme Court of South Australia decision in this area, in a case by the name of Bollen. In essence: two persons went out on a boat, the boat capsized in rough weather and only one of the persons survived. (It was specifically noted in the decision that there were no suspicious circumstances surrounding the incident.) The body was never recovered, but based on the account of the survivor – and the search efforts of the police and other surrounding circumstances – it was clear that the other person did not survive and can be presumed dead.

The Order was made approximately four years after the death. Obviously this is still a substantial passage of time and some of this time reflects the complexity involved in gathering all of the evidence for an application like this. Some delay will be inevitable by the requirement to collect the evidence of the absence of signs of life. But this decision does show that the seven year presumption is not a fixed limit.

Do you need help?

Over the years, our firm has successfully assisted in several missing person cases with similar circumstances to the Bollen case. We recently made a successful application for an Order for permission to swear death in which the elapsed time was just over two-and-a-half years.

Our firm has also assisted the families of people who have gone missing in very different circumstances.

If you or someone you know is in a situation where a person has gone missing and wish to seek some advice on how to proceed, please contact Mellor Olsson’s deceased estate team.