Not all legal zombies are equal

Many jurisdictions lag behind Britain when it comes to allowing civil dead to come back to life, says Richard Easton

On 7 October, Donald Miller walked into the probate court of Hancock County, Ohio, a living man and walked out a dead man.

Miller was declared dead in 1994 after he vanished in 1986, leaving his wife and two children with nothing but his debts. He resurfaced in 2005 when he applied for a driving licence. But last month Judge Allan Davis found Miller still to be 'dead' because Ohio law bars the revocation of declarations of presumed death if more than three years have passed since the order was made. "I don't know where that leaves you," said Judge Davis to Miller, "but you're still deceased as far as the law is concerned."

Civil death

Is this the emergence of zombie law? Or does legal death during natural life harken back to the early common law? And what is the future for the living dead?

Under early English law, legal death could occur before natural death. Abjuration (the avoidance of punishment by swearing to leave the realm), attainder (condemnation for felony or treason) and banishment all caused one to become civiliter mortuus ('civilly dead').

The civil dead lost all the legal accoutrements of personhood: his contractual and proprietary rights instantly evaporated (although, after abjuration, a felon was permitted to retain his shirt and breeches); his access to the courts was barred; he was disqualified from testifying as a witness; he could, in essence, perform no legal function. As attainder was often followed by execution, the civil dead usually suffered only a short interval of legal necrosis before their ultimate end; but the doctrine of corruption of blood meant that attainted person's heirs were disinherited. And the outlaw was thrust into a state of nature in which, it was argued as late as 1382, he could be killed arbitrarily by anyone: YB 2 Edw III f 6 (Hil pl 7).

However, another - far less violent - form of 'civil death' occurred when monks entered orders. "Profession" (the taking of monastic vows) left one "absolutely dead in law" according to Blackstone's Commentaries: the monk, when he "enters into religion [,] may, like other dying men, make his testament and executors".

The last rites for civil death by monastic profession were spoken in Lady Portington (1692) 1 Salkeld 162 and Sir Lawrence Anderton (1722) 9 Modern 54; and in Metcalfe's Trusts (1864) 2 De Gex, Jones & Smith 122, the suggestion that a nun's taking the black veil left her civilly dead and legally unable to own property was deemed "mere nonsense". Moreover, the automatic lifelong incapacity of "infamous" convicts to testify and felons' loss of chattels and land, all elements of civil death, ended with the Civil Rights of Convicts Act 1828, the Civil Evidence Act 1843 and the Forfeiture Act 1870.

Skeleton rallies

Yet traces of civil death remain in English law. In Hirst v UK (2006) 42 EHRR 41, the Strasbourg court remarked that the statutory authority for inmates' disenfranchisement "reflected earlier rules of law […] (the so-called 'civic death' of the times of King Edward III)" (at [22]). (Although Lord Sumption on 16 October in R (on the application of Chester) [2013] UKSC 63 at [126] doubted the "civic death" origins of the ban on prisoner voting.)

But elsewhere in the modern common law world terrifying forms of civil death still occur. This year, Indian photojournalist Arkadripta Chakraborty exhibited his Coming Back to Life collection of images of a fearful crime's victims. In Uttar Pradesh, thousands of people have been declared dead by corrupt officials bribed by unscrupulous relatives anxious to seize the 'dead's' land. Chakraborty has documented India's living dead. His muse is Lal Bihari Yadav, founder of the Mritak Sangh ('Dead People's Society') and a former legal zombie himself. The machinations of his greedy family led Yadav, now 61, to be declared dead at the age of 15. Appeal after appeal to officials went unheard. Eventually, in a desperate attempt to publicise his plight, Yadav gave himself a mock funeral. It was not until 1994 that he was legally resuscitated and declared to be 'alive'.

On his journey through the land of the civil dead, Yadav met many fellow corpses-in-law. He is now an activist for the thousands in India who have been crookedly declared dead and organises regular 'skeleton rallies'.

Alive again

England has not, however, been much troubled by relatives' legal zombification of one another. Indeed, parliament's concern has been for the families of missing persons. The complexity of the law governing presumed death means that those who are left behind can go through the heartache and unnecessary expense of labyrinthine legal processes to dissolve a marriage, administer an estate, claim benefits or life insurance or simply stop direct debits when a loved one mysteriously disappears. The Presumption of Death Act 2013, which should come fully into force in April 2014, consolidates and simplifies the law on registering a missing person as dead.

And unlike Ohio law, which appears unable to resurrect Donald Miller, the Presumption of Death Act 2013 also allows for the revocation of declarations of presumed death at any time. Indeed, the Act's Explanatory Notes give "an obvious example" of when a declaration could be usefully annulled: "where the missing person returns, still alive".

Sadly, Donald Miller's 'death' will not so easily be revoked. Miller (RIP) may appeal against the Ohio court's ruling. We look forward to his skeleton argument.

Richard Easton is a solicitor at GT Stewart Solicitors

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