Four years after a Queensland woman disappeared at sea a Brisbane lawyer trying to highlight flaws in the state’s estate laws is frustrated that nothing has been done to enact laws for managing a missing person’s estate.
Brisbane estate litigation lawyer Charlie Young says there is a serious gap in the state’s estate laws with no legislation addressing what may happen to the assets and financial affairs of a person who is missing.
The missing woman’s brother took legal action in the Queensland Civil and Administrative Tribunal (QCAT) in 2014 to have the Public Trustee appointed as the woman’s sole Administrator but instead the Tribunal imposed a condition on her partner exercising powers under his Enduring Power of Attorney.
Mr Young, Director and Estate litigation lawyer with Brisbane firm Bennett & Philp Lawyers, said it was frustrating that two years after this case demonstrated a clear need for Queensland to have laws dealing with the management of a missing person’s estate, nothing had yet been done.
Legal restrictions mean Mr Young cannot name his 2013 client or, by extension, the client’s missing sister.
“This disappearance focussed attention on Queensland’s estate laws which in effect are a grey area for people missing but not yet deemed to be deceased. Generally speaking, seven years need to have passed before a Court may presume that a missing person is deceased.
“However, not surprisingly, that is a long time to wait for the family involved and it can be very difficult for the family to manage the person’s affairs during that time.
“In the interim, Queensland legislation does not specifically address what can or should happen with a missing person’s assets or financial affairs. Victoria and New South Wales, on the other hand, have legislation allowing for the appointment of someone to manage the assets of missing persons.
“I believe it is overdue for Queensland to implement something similar, and it’s frustrating that two years have passed since the need for change became apparent and nothing has been done yet,” Mr Young said.
While most people reported missing are eventually found, there is nothing to enable the protection and administration of the estate while a person is missing unless the person had previously appointed a power of attorney.
“Family members of missing persons, often experiencing significant pain and distress, soon come to realise that they are not legally entitled to manage their loved one’s affairs if no attorney has been appointed. Reform would make things much easier for the family,” Mr Young said.
“Like Victoria and New South Wales we need provision for an administrator to look after the assets of missing people,” Mr Young said. Canada, England and parts of US have legislation to deal with estates of missing persons.
The woman’s disappearance from her boat was no closer to solution. He said police had been unable to reach any conclusions as to the circumstances of the disappearance.
“She vanished off her yacht in the middle of the night while overseas. There were no witnesses. Her body has never been found. It was unlikely now her disappearance would ever be resolved.
“Nobody seems to be actively investigating it now. As the place of her disappearance has not been verified there appears to be an unresolved issue as to which country has jurisdiction of the matter and whether it is even something Queensland police can or should investigate,” he said.