With the tragedy of MH370 followed shortly by that of MH17, many people have been asking what happens when the bodies of those Australians who are presumed dead cannot be located and repatriated.
There is a long held statement of general legal principle that what is known as the “Seven year rule” will apply prior to being able to be granted leave to swear the death of the missing loved one. The seven year rule is that a person who is missing cannot be declared as deceased until a period of seven years has expired since the missing person was last heard of or seen by those persons with whom the missing person was in regular contact. Presumably monitoring of bank accounts, credit card statements and mobile telephone records would also provide evidence that might not have been thought of or available in 1937, the year this rule was handed down by the High Court. The strict application of this rule in the circumstances surrounding those missing as a result of the recent Malaysian Airline tragedies would be entirely unsatisfactory for those who seek to gain closure and to move forward from the unexpected and tragic loss of life and understandably so.
The seven year rule is the line in the sand, or the rule of thumb if you will. There are circumstances in which the presumption of life (known as the presumption of continuance) can be rebutted in certain circumstances. For those affected Queensland families, there is precedent in Queensland law where the “7 year rule” has not been followed and leave to swear the death of a missing loved one has been allowed. The making of an application to swear the death is not a simple process and the court makes no apologies for ensuring that the application is rigorously tested, for obvious reasons. However, limited grants can be obtained by an appropriate applicant in the intervening period to look after the missing person’s assets in their absence.
In the aftermath of the Boxing Day Tsunami the British Government amended their legislation in relation to the issuing of death certificates and set criteria that:
  1. There was evidence (beyond a reasonable doubt) that the person travelled to the affected region;
  2. On the balance of probabilities the person was in the area at the time the Tsunami struck;
  3. There was no evidence of life after December 26; and
  4. There was no reason on the balance of probability that the person had any desire to disappear.
Whilst there is no move afoot to amend legislation in Queensland and difficult to provide a definitive check list of what evidence would be required, it is likely that evidence of the persons boarding the doomed flight (e.g. confirmation from the Department of Foreign Affairs and Trade (DFAT) and customs officials) coupled with there being no reasonable evidence of life after the date the flights that were declared lost would, in the writer’s opinion, at least be enough evidence to obtain leave from the court to swear the death. In the interest of completeness and to satisfy the court, one might also collect evidence from employers, colleagues and friends with whom the missing person was in regular contact to ensure that the weight of evidence falls in their favour prior to embarking on any application.
People struggling with the aftermath of the Malaysian Airline tragedies whether directly involved or not are encouraged to seek professional help and guidance please call lifeline on 13 11 14.
Until next time.
Dan Hutchinson
Managing Director – TEP; LLB (QUT); BBus (QUT)
Direct e-mail: dan@cookehutchinson.com.au
Direct line:                (07) 3284 7895
Disclaimer: This article is not intended to constitute legal advice and should not be relied upon as such. It is a general interest article, not an academic piece of prose, and is designed to enlighten our clients about legal issues that might be of interest to them. References are deliberately omitted and legal jargon, where possible, has also been deliberately omitted.  If you would like further information in relation to the content of this article please contact our office.