Presumed dead

The Presumption of Death Act 2013 comes into force on 1 October 2014, and introduces an improved presumption of death system in England and Wales. It will address the flaws in the present system by creating a new court procedure which can lead to the issue of a ‘certificate of presumed death’.

Out with the old

As practitioners will have experienced, even when it appears clear that a missing person is likely to be dead, the absence of a body makes it very difficult to register that person’s death or obtain a death certificate. Without a death certificate, next of kin struggle to prove that their relative has died, barring them from administering their estate, dissolving a marriage, claiming benefits and life insurance, or regularising a mortgage.

Individuals are often faced with pursuing separate legal processes in order to resolve different affairs (a grant of probate, for example, will not automatically dissolve a marriage), which leads to stress, delay, and sometimes substantial cost. For practitioners, the difficulty has been how to advise properly in the context of such a nebulous and arcane system. As one practitioner said in the consultation leading to the introduction of the Bill: “There is a real call for change and I would contend it is not just by the relatives directly affected by a missing person but by the professionals who are left having to advise families as to the law.”

So what’s new?

In short, everything. The old system (if it can be so described) is replaced by a ‘one-stop shop’ procedure to obtain a certificate of presumed death.

The key points are:

• An application for a declaration of presumed death can be made by a close relative of the missing person, ie a spouse, civil partner, parent, child or sibling (including half-brothers and sisters). Individuals may still be able to apply if they have a sufficient interest and the missing person’s spouse, civil partner, parent, child or sibling can intervene in the application. In addition, there must be a connection with England and Wales: either the missing person must have been domiciled in England and Wales on the date he or she was last known to be alive, or habitually resident in England and Wales for the preceding year, or the applicant is the spouse or civil partner of the missing person and was domiciled in England and Wales on the date of the application, or habitually resident in England and Wales for the preceding year.

• The court must make the declaration if it is satisfied that the missing person has either 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, therefore, where there is reason to believe the missing person has died.

• A declaration is conclusive proof of the missing person’s presumed death, and the time and date of the presumed death. It is effective for all purposes and against all persons. It will dissolve the missing person’s marriage or civil partnership, and will have the same effect as regards property ownership as death. The court will send a copy of the declaration to the Registrar General, who will make an entry in the register of presumed deaths.

• If it later becomes clear that the declaration is incorrect, for example because the missing person is alive, or was alive at the time he or she was declared dead, any person with a sufficient interest may apply to the High Court for an order to vary or revoke the declaration of presumed death: a ‘variation order’. Such an order does not itself affect interests in property which someone has acquired as a result of the declaration of presumed death, and does not revive a marriage or civil partnership that was brought to an end by a declaration. The court cannot make a variation order where more than five years have passed since the date of the original declaration, unless the court considers there are exceptional circumstances which make it appropriate to do so.

The Act is a welcome tidying-up of the law in this difficult and sensitive area. Practitioners will now have an easy route map to follow when advising their clients.

Lloyd Junor is a senior associate at Thomas Eggar

He writes the regular in-practice article on wealth structuring for Private Client Adviser