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Kirsten Bennett

Managing Partner, Lund Bennett Law

End in sight: Presumption of Death Bill

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End in sight: Presumption of Death Bill

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There is light at the end of the tunnel for the introduction ?of presumption of death legislation, says Kirsten Bennett

In October 2003, a young father called Vinny Derrick went out for a few drinks with some work colleagues at a popular city centre bar in Manchester. He was due to stay with his boss at her home in Heald Green, but she had left the club before him.

He later rang his boss to say he had got out of a taxi, but was lost on a dual carriageway. His boss gave him directions to her house, but he never turned up.

Mrs Derrick obtained a presumption of death order in 2011, yet still faced problems in dealing with Vinny’s estate.

In February 2012 his remains were found by workmen in undergrowth near a motorway junction.

Current complexity

Currently, it is difficult to register ?the death of a missing person in the absence of a body. Without the death certificate, practical issues such as selling property, dissolving a marriage, claiming life insurance and pensions are protracted affairs.

There is a common law presumption that if a person has been missing for seven years they are presumed dead, but this is not incorporated into statute.

For professional advisers, dealing with a missing person who is ‘presumed dead’ is a complicated matter. There is no single piece of legislation that has the effect of providing death on a conclusive basis and for all purposes. In essence, it is a mixture of common law and statute.

It can often be the case that a person can be declared dead in one court but not another, and therefore multiple applications can be required to deal with one person.

The common law position (as stated in Chard v Chard, 1956) is that, unless there is convincing evidence to show that a person is dead, a presumption ?of death will only arise in cases of ?seven or more years’ absence and upon proof that:

1. there are persons who would be likely to have heard of the missing person over the period of time;

2. those persons have not heard of that missing person during that time; and

3. all due inquiries appropriate to the circumstances have been made.

If all three of the above conditions are satisfied and in the absence of any affirmative evidence of life during the relevant period, a presumption in law will arise that the missing person has died. If these three conditions can’t be satisfied, it becomes a question of whether or not a court can be persuaded that it should infer death as a matter ?of fact.

A seven-year time period isn’t ?always necessary, as long as the court is satisfied that all enquiries into the missing person have been carried out ?on a thorough and wide-ranging basis.

The other routes available to deal with presumed death are:

1. coroner’s inquest under section 15 of the Coroners Act 1988;

2. decree of presumption of death and dissolution of marriage under section 19 of the Matrimonial Causes Act ?and section 37 of the Civil Partnership Act 2004;

3. leave to swear death under rule 53 ?of the Non-Contentious Probate Rules 1987;

4. determinations of entitlement to benefit by the secretary of state under section 8 of the Social Security Act 1998; and

5. consular death registration.

Dysfunctional law

As a result of the dysfunctional law, the Justice Select Committee held an enquiry in 2011.

The findings were published in February 2012 and the committee made three key recommendations:

1. better guidance should be made available as to the current law. Too many people are confused about it and guidance should be simpler and easier to access;

2. legislation should be introduced to create a single statutory process to obtain a certificate of presumed death broadly equivalent to a death certificate;

3. legislation should be introduced to create a new status of guardianship to deal with the affairs of a missing person.

The Ministry of Justice responded on ?6 July 2012 and accepted the committee’s proposal that a certificate ?of presumed death should be created. The written ministerial statement said: “The government will introduce legislation to achieve this when parliamentary time permits.”

In terms of managing a missing person’s affairs in the shorter term, referred to as guardianship, the official report states that the Ministry of Justice will talk to the Law Commission about potentially examining the area.

What will a change in law mean?

The problems experienced by family members when a person goes missing can only be alleviated effectively by the introduction of new legislation, which would effectively introduce into law a court-based procedure where a declaration of death could be obtained from the High Court.

For example, in the event the court was satisfied that a person had died, or that they had not been known to be alive for seven years, a declaration would be made.

When it can no longer be the subject of an appeal, the court would then send a copy of the declaration to the registrar general for England and Wales. At that time, the declaration would be conclusive evidence as to the presumed death and effective for all purposes and against all persons.

This means that the missing person’s property will pass on to others in the same way as if the missing person had died and be certified dead in the normal way. The registrar would then enter details of the death of the missing person in a new register of presumed deaths, which will be linked for search purposes to the registers of death maintained under the Births and Deaths Registration Act 1953.

The new register will be created and maintained by the registrar general and certified copies of entries would be treated as evidence of the missing person’s death without further proof.

Naturally, further consideration has to be given to the scenario of a person reappearing, or the emergence of facts that require the declaration to be varied.

This would involve an application being made to the High Court to vary or revoke the order. Once the variation order is beyond appeal, the court will send it to the registrar general who will amend the register.

Lining up

This is the procedure outlined in ?John Glen’s Presumption of Death Bill and brings England and Wales closer in line with Scotland and Northern Ireland, which have already enacted similar legislation.

It is also considered to be consistent with the Counsel of Europe’s 2009 recommendation on principles concerning missing persons and presumption of death.

While the bill has wide ranging support and is seen a positive step in simplifying this convoluted area of law, it does not deal with the third recommendation of the Justice Select Committee, namely that of guardianship.

Guardianship orders would essentially enable actions to be taken to deal with the missing person’s affairs, which are necessary and in accordance with the best interests of the missing person.

The Private Member’s Bill introduced by Baroness Cramer (Presumption of Death and Provisions Relating to Missing Persons) makes provision for guardianship.

The bill remains alive in the House of Lords, however, due to the complexities of a Private Member’s ?Bill, it is considered more appropriate for John Glen MP to pursue his Private Member’s Bill in the House of Commons. If unsuccessful, Baroness Cramer would be likely to pursue ?her bill.

The rationale behind this is that it is thought John Glen’s bill is far more likely to gain the support of parliament due to its simplistic nature. The very concept of a ‘guardianship order’ is far more complex and would likely be the subject of objections. It is unlikely that the government will consider this idea without proper consultation with the Law Commission.

There is enormous support for both the introduction of presumption of death legislation and provision for guardianship orders. It is anticipated that if legislation was introduced dealing with presumption of death there would be between 30-40 applications each year.

In addition, on the basis that 200,000 people go missing every year, and one per cent of those remain outstanding at the end of that year, there could be around 2,000 applications for guardianship orders per annum.

The second reading of the Presumption of Death Bill was completed in the House of Commons at the beginning of November and it was passed without a division. It will now be considered by a Public Bill Committee.

It is hoped that a new law will be enacted in time for the next parliament.

It would be a missed opportunity if this legislation were not to be given Royal Assent.

Kirsten Bennett is a solicitor at Lund Bennett Law

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