- The question of how to deal with missing beneficiaries continues to arise in wills and estates cases.
- A Benjamin order allows an executor to distribute an estate on the basis that a beneficiary has died before the deceased testator.
- Death can be proved by production of a death certificate or any other convincing evidence.
- Death is presumed after an unexplained absence of seven years, however the presumption does not establish a date of death.
- A Benjamin order does not deprive the beneficiary (if later found) from claiming the testamentary gift and, if necessary, tracing its distribution.
The law has various ways of establishing death. The most common method is production of a death certificate issued by the arm of the executive government responsible for recording deaths in the jurisdiction in which the death occurred. In NSW that responsible entity is the Registrar of Births, Deaths and Marriages. The record is the Births, Deaths and Marriages Register. The certificate is issued pursuant to s 49 of the Births, Deaths and Marriages Registration Act 1995 (‘the Act’).
However, this is not the only means of proving death. Sometimes, something less than a certificate of death is accepted by a court as sufficient evidence of death. Accordingly, in Re Mayne (1858) 1 SW & TR 11; (1858) 164 ER 606 a court found that the master of a ship that was presumed sunk but whose body was never found was dead. Other examples are Mackay v Mackay (1907) 18 WN (NSW) 266 where a passenger aboard a ship that was wrecked was treated as dead; and In re Purton  QWN 33 a flying boat pilot was found deceased by the court after not reaching his destination when fleeing the impending Japanese invasion of Java. In Re Parker (1995) 2 Qd R 617 a man who was washed into the sea from rocks and did not resurface was found by the court to have died; and in Re Bennett  QSC 250 a diver who went missing during a dive in South Korea was treated as dead.
It can be observed that the sea played a large part in these decisions. And so it was with the recent example of Maynard v The estate of Maynard  QSC 144, the facts of which are summarised in the wills and estates case notes of the July edition of the LSJ, p98. Peter Maynard disappeared during a surfing holiday in Bali. The Supreme Court of Queensland determined that Maynard had died in Indonesia, but his body had not been found and a death certificate had not been issued.
It noted that it was ‘a difficult and lengthy process for an Indonesian death certificate to be obtained’. The Court noted that Maynard was domiciled in Queensland, his estate was in Queensland, his wife and children lived in Queensland, and the evidence showed that they were suffering financial hardship.
These facts, the events surrounding the apparent death, and subsequent events led the Court to be satisfied that the widow, Kylie Maynard, who did not accompany her husband on his surfing holiday, ’should be at liberty to swear to the death of Peter James Alexander Maynard’. Note that in NSW, the death could be recorded in the Register in these circumstances (see s 36(4) of the Act). If the death was so registered, a death certificate would be available to prove death in the conventional manner.