Who Is Entitled to the Assets of a Person Presumed Dead?

A recent decision of the Queensland Supreme Court has addressed the issue of whether the assets of a person who is presumed dead can be dealt with under succession laws. It further considered what happens to the assets of a person who is presumed to have passed away when the beneficiaries of that person’s Will subsequently pass away.

It is worthy to note that in this case, there was no evidence that the person who was presumed to have passed away, did in fact die at least 30 days before the beneficiary subsequently passed away. Additionally, there was a further question as to whether the beneficiary had caused the unlawful death of the person who was presumed to have passed but that is not covered in this summary.

In Queensland, Section 33B of the Succession Act stipulates that a person must survive a deceased person by at least thirty (30) days to receive any entitlement they had under the deceased person’s will.

If the person entitled to inherit subsequently passes away, does the asset they were to inherit then fall into their estate.

The court ruled that if a person is only presumed to be dead but no final evidence of death including the issue of a Death Certificate stating a date of death can be produced, there can be no certainty as to the date of death of that person and therefore there can be no claim by the beneficiaries of that estate to any entitlement to assets. Further, if any of the beneficiaries subsequently pass, their estate is also prevented from making a claim. Essentially, until it can be conclusively determined that a person has passed and the date or approximate date this happened, there can be no administration of their assets at any level.

If you have any Will and Estate queries please contact our Commercial Law and Wills and Estates team at McLaughlins Lawyers, your Gold Coast lawyers.