When Danica Weeks drove her husband Paul to Perth International Airport on 7 March 2014, she didn’t know it would be the last time she would ever see him. That day, Paul flew to Kuala Lumpur and from there, boarded his connecting flight to Beijing, Malaysian Airlines flight MH370. It would never land at its destination, reported to have crashed into the water somewhere over the Southern Indian Ocean in what has become one of aviation’s greatest and most controversial mysteries.

Such tragedies are hard enough, but when, as in the case of the MH370 disaster, they are unsolved, they are even harder on those left behind – the friends and family of all of those on board searching for answers. Apart from the emotional distress created by the lack of closure, there is the added stress of legal complications which come about because there is no proof that those believed to be dead, actually are.

A death certificate cannot be allocated without confirmation in the form of a body – and probate of a Will or, where the deceased left no Will, letters of administration cannot be granted without a death certificate.

In Paul’s case, Western Australian law applies. Rule 6 of the Non-contentious Probate Rules 1967 (WA) dictates that a death certificate is a necessary prerequisite to  probate or letters of administration being granted – that is, the process of proving a Will with the Supreme Court so that the executor can distribute the deceased’s estate in accordance with the terms of their Will or, where the deceased left no Will, an administrator being appointed to distribute the deceased’s estate in accordance with section 14 of the Administration Act 1903 (WA). At the time of this case in 2016, neither Paul’s body, nor the body of anyone else on board that flight, had been found to prove their death, hence a death certificate was never issued for Paul.

Under the common law, a person can be assumed dead after seven years have passed since they went missing, but this is an awfully long time to wait to seek probate or letters of administration. In 2019, five years have passed since the MH370 tragedy, and still nothing has been recovered except for a few random fragments of the plane that have washed up ashore. Under the common law, Danica would still have had to wait another two years before she could seek letters of administration.

For Danica, Rule 34 of the Non-contentious Probate Rules 1967 (WA) became relevant. Rule 34 meant she could swear the fact of death of her husband, or present other evidence of death if she had it.

The Rule states that the person’s death (in this case Paul) may be presumed because:

(1)    Paul’s disappearance at or after a given time, and from the circumstances around his disappearance, or from his not having been heard of for a prolonged period by those he might reasonably have been expected to communicate with, or

(2)    From his having been on board a ship (or in this case, an aeroplane), which did not arrive where it was supposed to within a reasonable time, and from the absence of communication or contact being made with anyone else on board that same vessel.

In the case of MH370, there is no doubt the aircraft went missing – this was confirmed by Malaysian Airlines as well as the Malaysian and Australian governments. It could also be reasonably assumed that it crashed somewhere over the Southern Indian Ocean and that, given the length of time that had passed, there was no longer any hope that anyone who had been on board was still alive.

There was also concrete evidence to prove that Paul had been on board that flight: CCTV footage taken at Kuala Lumpur International Airport shows Paul boarding the doomed flight from the boarding lounge.

This combination of facts satisfied the registrar of this case, Registrar Boyl, that Paul had boarded and subsequently perished as a passenger of a plane that fatally crashed en-route to its destination (Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25). Leave was granted to the applicant (Danica) to swear the fact of death for the purpose of obtaining letters of administration. Once this was settled, Danica was able to settle her husband’s affairs, at least providing one moment of certainty for one family involved in this terrible tragedy.

This article was written by Nick McColl, Estate Planning Solicitor, Trustee & Wealth Services August 2019.

If you have any questions about any other estate planning or estate management issues raised by this article, please contact us.

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This communication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice which takes into account an individual’s specific objectives, financial situation and needs. 

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