Missing no longer

On 10 February 2016, the High Court granted the legal equivalent of a death certificate for Lord Lucan, the peer who disappeared on 7 November 1974 after the murder of his children's nanny at the family home. An inquest jury a year later named him as the murderer, but his body has never been found. The court issued a declaration of presumed death under the Presumption of Death Act 2013 (PDA 2013) bringing finality to the proceedings for Lord Lucan's family, and inheritance rights for Lord Lucan's only son, George Bingham.

This is arguably the most high profile case under the PDA 2013 to date, following the legislation coming into force on 1 October 2014. Prior to the PDA 2013, there was no single court procedure to obtain a conclusive ruling on a presumed death that would be effective for all purposes. Applications to the court could be made under specific legislation relating to particular purposes, such as to obtain a grant of probate or to dissolve a marriage.

The family of Manic Street Preachers guitarist and lyricist, Richey Edwards, took this route to obtain a grant of probate in October 2008, after he went missing in February 1995. Such applications are based on the common law general presumption of death, which arose if a person had been missing for seven years.

PDA rules

Under the PDA 2013, certain family members or people with 'sufficient interest' can apply for a declaration of presumed death if the missing person has died, or has not been known to be alive for a period of seven years. The missing person must have been domiciled or habitually resident in England and Wales at the relevant time, or their spouse or civil partner must have been so.

It is the effect of the declaration that is the major change for affected families and practitioners. The declaration is conclusive of the fact and date of death, and is effective for all purposes and against all persons (once the relevant appeal period has elapsed or any appeal has been unsuccessful). The declaration is entered onto a register of presumed deaths, and a certified copy of the entry serves as proof of death in the same way as a death certificate.

This means, among other consequences, that a grant of probate can be applied for, assets transferred into surviving co-owners' names, the estate distributed, any spouse can remarry, insurance and pension payments made and successive trust interests take effect.

Arise, Lord Lucan

In the case of Lord Lucan, the family had already obtained a grant of probate in 1999 under the pre-PDA 2013 regime, meaning his estate is presumably already distributed to those entitled to it. But the last or main outstanding issue was the succession to Lord Lucan's title by George Bingham.

The declaration means that Mr Bingham now becomes Lord Lucan, eighth earl of Lucan, and succeeds to any rights and assets that go with it. However this no longer includes a seat in the House of Lords as the title was one of those excluded when membership of the Upper House was reformed in 1999.

The new lord should however be mindful of the power of the court to make a variation order if the missing Lord Lucan is known to still be alive. A variation order can have the effect of revoking a declaration of presumed death, although it does not automatically reverse any transfers of property that may have been made. Separate orders will be needed in relation to affected beneficiaries and assets.

'Exceptional circumstances' will however be needed if five years have elapsed since the declaration and transfers of property made in good faith are similarly protected. Executors and trustees would be wise to take out insurance to guard against the consequences of a possible variation order affecting assets they have distributed.

The government predicts that the PDA 2013 will result in 30-40 declarations of presumed deaths per year, and for those families involved, the legislation provides a simpler and quicker way to achieve a fully effective declaration of presumed death and psychological 'closure'. Practitioners should remember that obtaining the declaration is effectively only the beginning of the job as then, for many estates, the hard work really begins.

Andrew O'Keeffe is a partner in the private client team at Wedlake Bell

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