The Presumption of Death Act finally provides a clear and coherent procedure for the families of missing people, writes Sarah Young
More than 250,000 people go missing
in the UK each year. Most ‘mispers’ return or are found, but for some families there are no answers, and the uncertainty can be emotionally and financially devastating.
A disappearance is often involuntary (murder or misadventure) or occurs
as a result of severe mental health distress (suicide).
There is still, as yet, no ‘guardianship’ law that allows the family of a missing person
to manage their affairs in the hope that they will one day return. Any power of attorney should not be used unless the person is known to be alive (which is virtually impossible
if they are missing). Unless a missing person is presumed
to have died, no one has the legal authority to deal with
their finances or property.
The Presumption of Death
Act 2013 came into force in England and Wales on 1 October 2014. Solicitors who come across cases involving missing people may still think that the old common law rule applies: that a person has to be missing for seven years before they can be presumed to have died.
In fact, anyone can
apply at any point after the disappearance for a declaration of presumed death, and a declaration can be made
where a person who is missing:
Is thought to have died; or
Has not been known to be alive for a period of at least seven years.
There is no need to wait for seven years before making an application, unless the missing person is still thought to be alive. The application should
be made by the spouse, civil partner, child, or sibling of the missing person. The court
may refuse permission if the applicant does not have a ‘sufficient interest’, but there
is no guidance on what a sufficient interest is. In a recent contested claim, the family of the missing person argued that his cohabitee did not have a sufficient interest.
In that case, the fact that the cohabitee was also the sole executrix and beneficiary of
the missing person’s will was decisive, but there may be cases in the future where an applicant is ‘only’ a cohabitee and so an explanation of their suitability will be required.
In terms of procedure, part 8 of the Civil Procedure Rules applies together with part 57 and practice direction 57B.
Notice of the claim, once issued, must be given to the missing person’s immediate family and any other person (including any insurance company) appearing to the claimant to have an ‘interest
in the claim’. As the evidence filed needs to include details
of the missing person’s estate, this means that some care has
to be taken to ensure that the claimant is aware in advance of who will see the evidence. The spouse of a missing person may find it difficult to accept that their parents-in-law are entitled to know exactly what they will inherit if a declaration is made.
Evidence filed by the family and friends of the missing person may not be easy reading. In one case, the brother and sister of the missing man were both convinced that he loathed his wife (the claimant) so much that he had faked his own death and was in fact still alive.
If banks or financial institutions refuse to disclose information that they hold
on a missing person, a third-party disclosure order may
be obtained under section
12 (1) of the Act.
A declaration under the
Act includes a finding as to
the date and time of death,
and it permanently dissolves
a marriage or civil partnership. Separate orders can be made
if necessary to determine the missing person’s property rights. The declaration is
noted on the register of presumed death and
thereafter an application can
be made for a grant of letters
of administration and probate.
A declaration can be varied or revoked by a variation order
(if, for example, the missing person reappears).
The Act provides a clear
and coherent procedure for families who have often, in the past, suffered the bureaucratic nightmare of trying to deal with the affairs of a missing person. The process itself, and the death certificate that follows, enables some sort of closure – and that has enormous value to families who are unable to bury their loved one.