On February 16, 2019, Lyn ‘Raz’ Burtonwood was rostered, for morning surf patrol at Lighthouse Beach, Ballina, with other members of the Ballina Lighthouse and Lismore Surf Life Saving Club; a fit 69-year-old man who regularly attended the Beach, on a Saturday, for an ocean swim.
Raz jumped into the water to test the conditions; however other members of the surf patrol lost sight of him and launched an inflatable rescue boat but could not locate him.
Until light fell the search expanded to include jet skis, drones, helicopters and the SES and resumed the following morning. The search was extensive, unfortunately, Raz was not found during the search and has not been seen since. As the body was never found, the incident was treated as a suspected Death and a coronial inquest was mandatory
Death Certificate
On 13 December 2019, a Death Certificate was issued under the Births, Deaths and Marriages Registration Act 1995 (NSW). Showing Raz’s date of death as 16 February 2019 and the cause of death was stated as “Drowning” with the “Body Not Recovered”.
Generally proving death by inference where less than seven years has elapsed, when a person has disappeared was described in Chard v Chard [1956] P 259 at 270:
“… in each case…taking the facts as a whole and of balancing, as a jury would, the respective probabilities of life continuing and having ceased.”
In Estate of Lyn Burtonwood [2020] NSWSC 715 the Court observed
‘an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.’ (at [16]).
Informal Will
Raz’s son Che, sought administration of a document dated 25 April 1990 (the Will). Whilst the Court was satisfied that the document reflected the testamentary intentions of the deceased; it had not been executed according to Pt 2.1 of the Succession Act.
The Court ordered that Letters of Administration with the Will of the deceased annexed be granted to the Plaintiff. The Senior Deputy Registrar in Probate referred the matter back to the Court concerned about how the grant should be described in the Probate parchment. If a grant has been made on the presumption of death, generally it is not possible for the court, or a registrar to include provision for the date of death of the deceased person as the deceased’s death is not presumed to have occurred on, or about, a particular date.
Presumption of death
At common law after an absence of seven years, in certain circumstances, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. If a grant has been made on the presumption of death, it is not possible for the court, or a registrar to complete this requirement, as the deceased’s death is not presumed to have occurred on, or about, a particular date.
Establishing the presumption of death after seven years requires proof of the absence of knowledge of the person being alive whereas proving death by inference is a positive test.
The Decision
In this case, the Court held that the evidence is supportive of the conclusion, notwithstanding that a body wasn’t located, that Raz died on 16 February 2019 within a short period of having gone swimming. Further, there is no evidence that Raz had such a compelling motive to disappear to infer that he might have created an elaborate stage, to give the impression that he had died by drowning.
In discussing ss 40A and B of the Probate and Administration Act 1898
“It is unclear whether the term “presumption of death” in s 40A covers cases referred to as “inferred death”, as well as what can properly be described as a “presumed death”.
where a grant was made on the presumption of death s 40B, provides that the estate could not be distributed without leave of the court.
The Court found that the grant of letters of administration of the testamentary document could be made without including the words ‘on presumption of death’.
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