PRESUMPTION OF DEATH

QUESTION
Nana intends to apply for letter of administration to her father’s estate and
consults you on the possibility of obtaining a declaration that her father is
dead. Nana informs you that her father was one of those who were missing
in the
Tsunami disaster in Acheh in 2004.

Consider the relevant provision/s in the Evidence Act 1950 that may be
relied upon to assist Nana. If there is such provision/s. advice Nana on it/s
requirement.
Law
In Malaysia to be declare dead, there must be physical
body before the law recognized the end of presumption
of life of person.
Malaysian law remain silent on the definition of
missing persons and incorporated with common law
principle, which can be found in section 107 and 108
of Evidence Act.
Law
Section 108 of Evidence Act, Burden of proving that person is
alive who has not been heard of for 7 years.
The burden of proving that whether the man is still alive is
shifted to the person who affirms it.
A presumption shifts the burden to the opposing party to
prove that the assumption is untrue. Presumption is not to the
time or date of death.
The exact of time of death is not a matter of presumption but
of evidence and the onus of proving that death took place at
any particular time within the seven years lies upon the
person who claims a right to the establishment of which that
fact is essential
Law
The above provision designates that the High Court will
only grant a declaration of presumption of death, if an
applicant can satisfy the court that the missing person in the
application had not been heard from for at least seven years.
Re Ex Parte Application of Tay Soon Pang @ Yeo Hak Seng
[2008] MLJU 928.
The court was of the opinion that when a person who had
regularly kept in touch with his wife until 1982 and
thereafter nothing was heard of him, he must be presumed to
be dead. From 1982 until now there was no evidence from
which the applicant could have reasonably concluded that
his father is still alive
Law
Lau Suet Wan v. Hong Leong Assurance Bhd [2015] 2
CLJ 681
In this case the deceased, Elvis had been missing from
home since 12 December 2002 and the plaintiff then
obtained a High Court order pronouncing that Elvis
was presumed dead and it was proved that Elvis had
not been heard of for the past seven years since 2002
by those who would naturally have heard of him if he
had been alive.
Application
If Nana can prove that she had not receive any
information about her father being alive after 7 years
from the disaster. She can seek the declaration from
the court for her father to be presumed dead according
to Section 108 of EA and decided cases