Presumption of Death Applications

When a person goes missing, families are often left in limbo – emotionally, practically, and legally. The law recognises this uncertainty and provides a pathway to families through a Presumption of Death Application. 

These Applications are most commonly brought after a person has not been sighted for seven years, however there are circumstances where an early application may be made.

What is a Presumption of Death?

A presumption of death is a legal declaration made by the Court that a missing person is presumed to have died. Once granted, it allows important legal and administrative matters to move forward, such as:

• Obtaining a Grant of Probate/Letters of Administration
• Accessing superannuation or insurance
• Updating records with Births, Deaths and Marriages
• Resolving property or financial arrangements

Without this declaration, families may be unable to take these steps, even years after the person disappeared.

Can you apply before seven years?

An Early Presumption of Death Application may be made, however there must be strong evidence that the person could not have survived.

Each case is unique and there is no automatic entitlement to an early declaration.

Tracey Ryan of our office was recently interviewed by the Herald Sun as to whether it would be viable to bring an Early Presumption of Death Application in the case of alleged police killer, Dezi Freeman given he has yet to be located.

Tracey provided insight into the prospects of such an application:

“Normally it’s in circumstances where it’s very obvious the person could not have survived”

“It’s not easy. You have to show definitively that there’s no possible way that the person could be alive, and I don’t think they could show that at the moment”

“I don’t think there would be enough evidence (right now) to bring an early presumption of death application”