Presumption of Death – a single framework

October 2014 saw the Presumption of Death Act 2013 (the “Act”) finally come into force. This Act was long-awaited as it creates the first single framework for obtaining a declaration that a missing person is to be presumed dead. This will come as a huge relief to families who have until now had to grapple with a number of different procedures for obtaining a presumption of death in relation to different aspects of a missing person’s affairs, causing delays and continued emotional upheaval. As of 1 October 2014, families and personal representatives can obtain the equivalent to a death certificate in respect of the missing person, which will be multi-purpose and will apply broadly, for example both in respect of accelerating the devolution of an estate to confirming the termination of a marriage on the basis of the presumed death of one spouse.

The Act will only apply to a missing person if the missing person was domiciled in England and Wales on the day on which they were last known to be alive, or habitually resident in England and Wales throughout the period of one year ending with the day that they were last known to be alive. In addition, where a missing person does not fall within one of the aforementioned categories, an application can be made by the spouse or civil partner of that missing person provided the applicant is domiciled in England and Wales or has been habitually resident in England and Wales for a period of one year on the day the application is submitted.

The application itself can be made by anyone with an interest in the application although the Court will have the power to refuse to hear an application under the Act if the application is made by someone that is not the person’s immediate family or if the Court considers that they do not have sufficient ‘interest’ in the application. The meaning of sufficient ‘interest’ will be at the discretion of the Court and is likely to take into account similar case law preceding the Act.

If the Court is satisfied on the basis of the evidence provided that the missing person has either died or has not been known to be alive for a period of at least seven years, the Court is obliged to make a declaration which must include date and time of the missing person’s death.

Since the Act came into force there is a register of presumed deaths at the General Register Office.

In the event that the Court is satisfied that the missing person has died but it is not clear, on the evidence, as to exactly when, the Court is obliged to deem that the person had died at the end of the period of time within which the Court believes they may have died.

On the other hand, if the Court is satisfied on the face of the evidence that the missing person was missing for a period of at least seven years, yet is not satisfied that the person has died, the time and date of the deemed death will be seven years beginning with the date after the day which the person was last known to be alive.

In addition to the declaration of presumed death the Court can make a declaration in relation to property acquired as a result of the declaration of presumed death, for example under the terms of the missing person’s Will. Fortunately, the Act does specify that where a declaration of presumed death is later varied or revoked, for example on the basis of new evidence, any property inherited as a result of declaration of presumed death cannot be recovered at a later date. This will protect the position of beneficiaries inheriting under the missing person’s Will or under the rules of Intestacy.

Although the Act represents a simpler, more practical system, it does not comprehensively deal with all issues relating to a missing person’s affairs. There has already been a consultation (which closed on 18 November 2014 – results still awaited) on the important matter of the guardianship of a missing person’s affairs during the time between when they initially go missing and the date a declaration of presumed death can be made by the Court in accordance with statute. Therefore, whilst the Act has been widely welcomed, there are clearly gaps in the framework that need to be filled. Meanwhile, where a relative/next of kin is unable to take control of a missing person’s affairs, there are a multitude of risks including a risk of insolvency and a risk that dependants do not receive the financial assistance they rely on and need. Fortunately, the Government does seem to have recognised the urgent need for additional legislation in this area of law and we hope that an appropriate draft bill will follow the results of the consultation relatively quickly, in order that the aforementioned risks are limited.

If you require further information about this topic or any other estate planning issue, please contact a member of the Edwin Coe Private Client team.

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