Everyone is presumed to be alive. That is until they are presumed to be dead. How is someone presumed to be dead? What’s the evidence? Well, generally there’s a dead body. When someone dies, there’s a death certificate, which a doctor or a coroner signs indicating that someone has died. But what happens when there’s no body? That generally happens when there’s a, say, a death at sea, where there’s no trace or other circumstances like that.
So in the example of Cast Away, Chuck Nolan was a troubleshooter for FedEx. He would fly out to various places and fix up however FedEx was operating. He had a job. He had to travel across the Pacific Ocean, but his plane went down and with it was all trace of GPS and things like that. No wreckage was found, and he was cast away on an island for four years. After four years, he made his way back home, met with his fiancé, Kelly, who had then moved on. She’d married and she’d had a child.
Now what is not explored in the movie, which is the kind of things lawyers think about, is what happened to all of Chuck’s assets. He was about my age. Mid-forties. He was engaged. So I presume he might have had, well he definitely had his Jeep. He may have had a house. He may have had some equity in the house. He may have owned the house. He was on a pretty good job with FedEx, so he probably was on a decent income and he probably had some kind of superannuation.
What happened when he was missing was that Kelly, his fiancee, had him declared dead. This wouldn’t have been too hard to do because he was on a pre-scripted light. Going from A to B, plane didn’t show up, there was a storm, they searched the area, no wreckage. Kelly would have applied as his next of kin and likely he would have had a will. And if he didn’t have a will, presuming this was in New South Wales to keep it local, Kelly would have been his administrator of his estate and would have applied to administer his estate.
So she would have had to have obtained an order from the court that Chuck was presumed dead. So there would have been some kind of inquest into his death, and she would have made an application to the Supreme Court that he had died. And so there would have been evidence or lack of evidence of life, but there would have been a presumption of death. Probate would have been granted to Kelly with a grant specifically that it was on a presumption of death, and she would have then have gone and distributed his estate.
So, if he left everything to Kelly, she would have got all of his assets, his jeep, his bank accounts, his house if he had one, any joint interests in that. Pretty much everything of wealth would have gone to Kelly.
But then four years, he came back and said, “Hey, I’m alive.” What would he have done then? Well, he would have to have gone to the Births, Deaths and Marriages to get his death certificate revoked, because then he’d be deemed alive. He would have then had to have gone to the Supreme Court to have probate revoked. And once that happens, there would be if his estate hadn’t been distributed, there would be an order that all his property vest back into him. So if Kelly hadn’t gone about transferring assets yet to herself, she would have had to have given them back to Chuck.
If however, she had distributed his estate, which is pretty likely, four years she’d married, she had children. There’s not an automatic order that she would have to return his assets. He would have to pursue her to get those assets back, which would be a story until it’s unto itself.
Anyway, that’s a quick spiel on presumption of death and what happens if someone comes back from the grave.