Origin, Purpose, and Current Applicability in Australia
Background and context, very briefly. See also the CQV Act 1707 page.
The term “cestui que vie” derives from the Law French meaning “he who lives” and refers to the man or woman on whose life an estate or interest in property is measured. The two Acts bearing this name addressed distinct but related problems arising from the uncertainty of whether such a man or woman was still alive, each approaching that uncertainty from a different direction.
The Cestui Que Vie Act 1666 (18 and 19 Cha. II, c. 11)
The 1666 Act was enacted during the period of the Anglo-Dutch Wars, when large numbers of English men had gone overseas, failed to return, and could not be confirmed as dead. The problem was straightforward: those entitled to inherit or claim an estate after the death of a man or woman who held a life estate were unable to do so because no proof of death could be produced. Estates were in consequence left in legal limbo, often reverting to the Church or remaining inaccessible to rightful heirs.
The Act addressed this by establishing a presumption: where a man or woman had gone beyond the seas or otherwise absented himself or herself for a period of seven years or more, without any proof of life, that man or woman was to be presumed dead for the purposes of the relevant estate. Section IV of the Act preserved the right of a man or woman who returned alive to revest title in himself or herself, and to claim the mean profits of the estate during the period of absence, with interest.
The Cestui Que Vie Act 1707 (6 Ann., c. 72)
The 1707 Act addressed the opposite problem. Where the 1666 Act assisted those claiming after a disappearance, the 1707 Act addressed concealment: guardians, trustees, and husbands who were suppressing evidence that a tenant for life had in fact died, in order to continue receiving rents and profits from the estate at the expense of those entitled to take after the life estate ended. The Act provided a mechanism by which those with a reversionary interest could apply to the Court of Chancery for an order requiring the production of the person alleged still to be alive. Failure or refusal to produce the person entitled the court to presume death and allow the reversion to take effect.
The two Acts thus complement each other: the 1666 Act creates the seven-year presumption of death from absence; the 1707 Act creates an enforceable right to demand production of a living man or woman where concealment of death is suspected.
Current status in the United Kingdom
In the United Kingdom, both Acts have been substantially overtaken. The 1666 Act was amended by successive Statute Law Revision Acts (1888 and 1948), with most operative sections repealed or modified. The 1666 Act was ultimately replaced by the Presumption of Death Act 2013. As to the 1707 Act, the Act was partly in force in Great Britain at the end of 2010, although the only text that had not been repealed was in the nature of a preamble. The Presumption of Death Act 2013 extends to England and Wales only. It is not applicable to Australia.
Applicability in Australia
Both Acts were received into Australian law. The reception date for New South Wales and Tasmania was 25 July 1828 under the Australian Courts Act 1828 (Imp.); for Western Australia it was 1 June 1829. Both Acts pre-date those reception dates and were in force in England at the time of reception.
Critically, both Acts were expressly retained in New South Wales by name in the Schedule to the Imperial Acts Application Act 1969 (NSW). The NSW Imperial Acts Application Act 1969 expressly preserves both “18 and 19 Charles II c 11 – The Cestui que Vie Act 1666” and “6 Anne c 72 (or c 18) – The Cestui que Vie Act 1707” in its Schedule of retained imperial acts.
The position in Western Australia requires separate consideration. Western Australia has no equivalent comprehensive Imperial Acts Application Act. Reception operates through the common law and the Interpretation Act 1984 (WA). The absence of a specific WA schedule means the question of displacement is determined by reference to whether local legislation has expressly or impliedly displaced the operation of either Act. No Western Australian statute has expressly repealed either CQV Act.
The UK Presumption of Death Act 2013 is entirely irrelevant in Australia. It was enacted by the Parliament of the United Kingdom after the Australia Acts 1986 severed UK legislative authority over Australia. It has no operation here in any jurisdiction.
In Australian courts, the seven-year presumption of death continues to apply through the common law, reinforced in scheduled jurisdictions by the retained CQV Acts. In Queensland, where a missing person is concerned, the law makes the prima facie presumption that the man or woman is alive, and the seven-year period remains the primary threshold for rebutting that presumption and obtaining a declaration of death from the Supreme Court. The same common law framework operates in Western Australia, where the Supreme Court may issue a Grant of Probate or Letters of Administration once death is established, either through a death certificate or through the presumption that a man or woman has died.
The 1707 Act’s mechanism for demanding production of a man or woman alleged to be alive, while not frequently invoked in modern Australian proceedings, remains part of the received law in jurisdictions where it has not been expressly displaced, and carries potential application where concealment of status is in issue.
Summary
Neither Act was replaced in Australia by the UK Presumption of Death Act 2013. Both remain part of Australian law as received, with the 1666 Act explicitly retained in NSW and operative through common law reception in Western Australia. They are best understood and applied as a complementary pair: the 1666 Act establishing the presumption and the reclaim mechanism; the 1707 Act providing the procedural right to compel production where life or death is in dispute.
Nemo tenetur seipsum prodere – no man is bound to produce evidence against himself; but where production is demanded by lawful process, that principle yields to the court’s authority to compel it.
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