A recent Qld case, Maynard, dealt with the difficulties of proving the death of a Mr Maynard for the purpose of finalising his estate.
Mr Maynard went on a surfing holiday to Bali in August 2014 by himself. The evidence showed that he arrived in Bali, checked into his accommodation but never checked out, and was not seen again.
Later that day, a fragment of his surfboard was recovered by a local dive master who swore an affidavit in Indonesian.
Mr Maynard’s body was never found, notwithstanding an extremely thorough search over several days. He left a wife and three children, and his wife made an application to the court to be appointed to administer his estate.
The court had to make a finding that he was dead for the purpose of allowing his wife to be appointed where it appeared he had also not made a will.
The court found that it would be very difficult to obtain an Indonesian Death Certificate. As Mr Maynard had resided in Qld, his estate was in Qld and his wife and children were suffering financial hardship, the judge decided to hear the matter in Qld.
She noted that Mr Maynard went surfing in large surf; the remnants of his surfboard, when found, suggested a severe impact with coral; and that extensive searches did not find his body, nor had anyone heard from him since.
The court held that he had died and accordingly ordered that his estate be administered by his widow.
The court also referred to a case from World War II where the executors sought to establish the death of a World War II pilot, Captain Purton, who went missing while piloting his Qantas flying boat from Tjilatgap, a port on the south-west coast of Java, towards Broome on February 28, 1942. The plane left at 8.40am carrying passengers who were fleeing from the Japanese.
Readers will recall that Singapore had just fallen and that the Japanese were on the march towards Indonesia.
Another flying boat captain who had in left Tjilatgap at 8.38am detected a message in code at about 9.09am from Captain Purton but was unable to obtain a response.
Enemy planes had been flying over Tjilatjap every night for some time. Apart from one small island about a mile off the coast of Java, there was no island of any description between Tjilatjap and Western Australia, being 1140 miles of water.
Captain Purton and his plane did not reach Broome. Nothing has been heard from the plane or any of the occupants, and the court accordingly made an order giving the executors of Captain Purton’s will authority to administer the estate. Subsequent post-war Japanese archive records revealed that the plane was shot down.
Flying conditions were fine which was unfortunate, as the flying boat would have been a sitting duck for Japanese fighters. My dad piloted a RAAF Sunderland out of England in World War II and he recalled that clouds were good to hide in, and he at least had guns front, aft and on top, unlike Captain Purton.
And conditions remained fine. It was recorded that at about 10.45pm that night the sea was calm, visibility good and the moon full which is when the USS Houston and the HMAS Perth, while steaming for Tjiltap, ran into an overwhelming Japanese naval force and were sunk after a heroic battle in the Sunda Strait.
Both Captains and many of their crew went down with their ships.
That case reminded me of two things: firstly, the difficulty of ascertaining a person’s death must have been a common situation during World War II, and secondly, that even when your country is threatened by an invasion, life goes on and the courts, by way of example, continue to attend to the day to day business of life even in those circumstances.
By Andrew Goode, Managing Partner, Mellor Olsson
This article was originally published in the Stock Journal on Thursday 9th July 2015.
Practice Area: Wills & Estates