Written by Peter Carter

Updated on July 21, 2020

The mysterious disappearance of Malaysian Airlines’ Boeing 777 presents unique legal issues for families mourning the MH370 missing.

The death of a person can not be presumed merely by their disappearance and a certificate of death can be withheld for months or even years. Different jurisdictions have different legal standards for obtaining a death certificate for probate purposes.

For the families of Australian, Malaysian and New Zealand passengers, the rules for persons “missing”, require a period of 7 years to elapse before a death presumption is made. This is of enormous practical importance because until there is at least a death certificate, bank accounts of the missing can’t be accessed by MH370 families and insurance companies can’t be called upon to pay out life policies to beneficiaries.

In some cases, courts accept a certificate from the Coroners office as proof of death as an interim measure before a formal death certificate can be given. But in the case of MH370, any coroner’s certificate for non-Malaysian residents would ordinarily come from the Malaysian Coroners Office and who knows how long that could take particularly if there is a lengthy enquiry into the event.

The courts of Qld and NSW, as well as those of Malaysia, can also be asked to infer death without waiting for the seven-year period to elapse if other convincing evidence is forthcoming. This could be as simply put as proving the passenger didn’t arrive in Beijing plus evidence from the search authorities in Malaysia that they have no information on its whereabouts.

So Australian courts could be the first judicial setting where the fate of MH370 is decided – at least as an interim measure – to allow the prompt administration of the estates of the Australian passengers and to access insurance policy entitlements for the passengers’ beneficiaries. For Malaysian passengers, it will probably require much longer because of the inevitable enquiry. In China, probate laws are different and insurance is not widespread.

In the Twin Towers terrorist attacks of September 2001, death certificates were issued promptly upon presumptions being made. And in the case of Amelia Earhart’s disappearance presumably as a result of her aircraft crashing into the western Pacific Ocean in July 1937, the executor of her will – wanting to finalise her debts and estate affairs – applied to the court for a determination that she had legally died.

Note though that where a grant of probate or letters of administration is issued on the presumption of death, the estate assets cannot be distributed without the leave of the court. Banks and other organisations sometimes release part or account funds if they are satisfied a beneficiary of the estate, such as a spouse or child, will suffer significant hardship but the release of funds without the completion of legal formalities is entirely at the bank’s discretion.

Another issue to consider in the case of spouses killed in the same calamity is the order in which they died. This often has major consequences particularly in “blended families” where each leaves their assets by Will to their own children.

Many countries have laws that specify – where the circumstances make it uncertain which of them survived the other – the younger deceased is deemed to have out-lived the elder person. This may result in the elder’s passing to the estate of the younger of the pair, to be distributed according to his or her Will – leaving the beneficiaries under the Will of the older partner to miss out. This applies in Malaysia, Queensland and NSW.

The legal consequences of accepting a condolence payment from the airline also need to careful consideration. MAS have offered passengers’ families “Special Condolences Payment” of AUD$5,400 (RM16,000; 31,000 Yuan).

Many families have refused to accept the payment “for easing emergency costs” as they were sceptical about the fine print, concerned it may prejudice other legal rights. The families would do well to remember that in similar events, such advance payments have always been deducted from the final expense payments made by insurance companies, to passengers. Qantas flight QF72 is a recent Australian example.

MAS has reportedly revised the receipt they require recipients to sign, to stress that such payment was merely to offer condolences.  “Because their family members are not with them, those who are here may not have enough cash, so this payment helps them for the time being,” a MAS spokesperson has emphasised.

Even the value of “free” flights ferrying family members – some business class – to Kuala Lumpur to be near the search mission control is likely to be deducted from final expense settlements paid by insurance companies if the QF72 and other recent cases are anything to go by.

Categories: Aviation law , Litigation & Law Practice , Civil procedure , Holiday & Travel Law

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