Applications For a Grant of Probate or Letters of Administration on Presumption of Death

Date: Dec 17, 2013
Document Type: Article

An Application for a Grant of either Probate or Letters of Administration on presumption of death occurs in every case where the deceased’s body cannot be found. This is the case even though a Certificate of Death may have issued.

When making such an application leave is usually sought for an order to distribute the estate even thought the deceased’s body cannot be found. In some circumstances the Court requires security as a condition of granting leave.

The evidence supporting the Application providing for the Grant on presumption of death is contained in a supporting affidavit which sets out the facts about the disappearance of the deceased as applicable and includes:

a.     the deceased’s mental and physical condition.

b.     terms of relationship with spouse/partner and family.

c.      circumstances of the disappearance.

d.     copies of depositions before any coronial inquiry.

e.     evidence of any relevant conversation by the missing person which may shed light upon the disappearance.

f.       evidence from relatives or friends who would ordinarily expect to be in contact with the missing person.

g.     copies of newspaper or other advertisements.

h.     extent and results of searches by police and privately and of hospitals and institutions.

i.       enquiries of place of business and of professional bodies, unions, sporting or social club of which the missing person was a member.

j.       whether the missing person left unusual debts and was insured and, if so, with what insurer. Evidence is required that notice has been given to the insurer at least 7 days before the application is to be heard.

k.      whether there have been any operations on the missing person’s bank accounts since the date of disappearance.

l.       results of enquiries of organisations such as the Red Cross, Salvation Army and of any relevant government department which may know of missing persons.

m.    whether there is any reason for the missing person to want to go missing and evade discovery.

Please call on 8268 4000 if you wish to discuss any matter concerning wills or estates.

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