Leave to Swear Death

• Author: Karen Nunez-Tesheira
• Pages: 384-390

384 / Probate Practice and Procedure

INTRODUCTION

Circumstances may arise in which an applicant for a grant of probate or

administration is unable because of the lack of direct evidence, to swear

positively to the death of the person with respect to whose estate the grant

is required. This must be distinguished from cases where the actual date of

death, as opposed to the fact of death, cannot be determined. In cases

where the death is known to have occurred between two specified dates, an

order for leave to presume dead is not required.2 When, however, there is

sufficient affidavit evidence available an order may be obtained from the

court granting leave to swear that the person concerned has died ‘on or

since’ a specified date. The court does not presume the person to be dead,

so that should he later be discovered to be alive, that person may apply to

the court for a rescission of the order and a revocation of the grant.

The main circumstances in which this type of grant is sought are:

(a)where the person concerned has disappeared for an extended period

of time; or

(b)where the circumstances indicate that he has committed suicide or

has perished at sea or in an aircraft crash.

A. DISAPPEARANCE OVER EXTENDED PERIOD

The general rule is that where a person has not been seen or heard of for a

period of seven years or more, such person may be presumed dead. However,

in order to satisfy the court that such person may be presumed dead, all

due inquiries appropriate to the circumstances of the case are required to

be made before leave to swear death will be granted.3

As Harman, J. pointed out in Re Watkins:4

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Leave to Swear Death1