The presumption of death outside England and Wales is addressed by the Presumption of Death (Scotland) Act 1977 in Scotland and the Presumption of Death Act (Northern Ireland) 2009 in Northern Ireland.
Last year the UK government noted that
At present, people left behind by a missing person may have to use various procedures to deal with different aspects of the missing person’s property and affairs.
Following calls for presumption of death legislation to be introduced (including by the House of Commons Justice Committee and the charity, Missing People), in June 2012, John Glen introduced a Private Member’s Bill, the Presumption of Death Bill. The Bill was sponsored by Baroness Kramer in the House of Lords. The Government supported the Bill which is now the Presumption of Death Act 2013 (the Act), having received Royal Assent on 26 March 2013.
The Act will enable an application to be made to the High Court for a declaration that a missing person, who is thought to have died or who has not been known to be alive for at least seven years, is presumed dead. Once it can no longer be the subject of an appeal, a declaration will be conclusive as to the presumed death and effective for all purposes and against all persons. The missing person’s property will pass to others as if the missing person has died and been certified dead, and his or her marriage or civil partnership will end.
The Act has not yet been fully implemented; on 27 March 2013, the Government said that the Ministry of Justice and the General Register Office would “now start work on creating the necessary rules and regulations to bring the scheme into force”.In a briefing regarding the Act the government stated that
3 Presumption of death: England and Wales
Generally, when a person dies, their death certificate can be used to obtain a grant of probate (where there is a will) or a grant of letters of administration (where there is no valid will and so the person died intestate). These grants enable the executors or administrators to deal with the deceased’s estate. Without a body, a death certificate would not usually be issued, and, for legal purposes, the missing person would generally be assumed to be alive.
There can be uncertainty, difficulties and delays in dealing with a missing person’s affairs. Those left behind may want or need to use the missing person’s property to pay for outgoings or other expenses but they cannot necessarily do so. Equally, they may find it difficult to stop unwanted payments going out from the missing person’s bank account. The missing person’s assets may effectively be frozen and no-one will be able to inherit them or dispose of them. A spouse or civil partner of the missing person is unable to enter a new marriage or civil partnership while he or she is still married to or in a civil partnership with the missing person. Strictly, it is not always necessary to wait seven years before seeking a court order to resolve the missing person’s affairs, but many people do so.
People left behind by a missing person may have to use various procedures to deal with different aspects of the missing person’s property and affairs.
The Ministry of Justice set out information about a number of relevant procedures in written evidence to the Justice Select Committee:
11. Where a person goes missing and there is sufficient evidence that he or she is probably dead then there are a number of specific procedures under which he or she may be presumed dead. In most of these cases the presumption of death is limited to the purposes of the specific procedure in question. This diversity may make resolving problems more complicated but the department would recommend that persons left behind by a missing person should take legal advice to identify the best way to deal with their predicament. The details of the specific procedures are as follows.
Coroner’s Inquest
12. Section 15 of the Coroners Act 1988 provides that a coroner may report to the Secretary of State where he or she has reason to believe that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but that the body is irrecoverable or has been destroyed. On receipt of such a report the Secretary of State, if he considers it desirable, may issue a direction to the coroner to hold an inquest. A death certificate will be issued as a result of the inquest.
Decree of Presumption of Death and Dissolution of Marriage and Presumption of Death Order
15. Under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a married person or civil partner goes missing and the surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, he or she can apply for a “decree of presumed death and dissolution of marriage” in the case of a marriage or in the case of a civil partnership a “presumption of death order”. A decree or presumption of death can be obtained at any time after the spouse or civil partner goes missing and will be granted if the court is satisfied that there are reasonable grounds that the missing person is probably dead. The decree or presumption of death order can only be used to dissolve the marriage or civil partnership. They cannot be used to obtain a death certificate and do not allow a person to obtain financial or property orders against the former spouse of civil partner. Such ancillary relief will only be available if the missing person returns.
16. The decree or presumption of death order will allow the spouse or civil partner left behind to marry or enter a civil partnership. (...)
Leave to Swear Death
19. Where a person goes missing and a member of the missing person’s family wishes to obtain a grant of probate in order to administer the estate of the missing person then he or she can apply for a “leave to swear death order”. A leave to swear death order is made pursuant to Rule 53 of the Non-Contentious Probate Rules 1987. It is an order made solely for the purpose of allowing probate to be granted to the estate of a missing person. It is not, and will not be accepted as, conclusive proof of death. An application is made ex parte on affidavit, usually by the applicant for the grant of probate or letters of administration, to a District Judge of the Principal Registry of the Family Division or a District Probate Registrar. Appeals from the Probate registry are made to the Chancery Division of the High Court.
20. Probate is the process by which the estate of a deceased person is administered: that is gathered in, the debts paid and the net estate distributed in accordance with the will or the intestacy rules. The administration is conducted by executors named in the will under a grant of probate or administrators appointed by the court under letters of administration in the case of intestacy.
21. A leave to swear death order enables an application for probate or letters of administration to be made. The estate of the missing person can then be administered. (...)
Certificate of Presumed Death
23. Where a person has gone missing in identifiable circumstances it may be possible to obtain a “certificate of presumed death”. These can be made under a variety of Acts and regulations.
24. Circumstances where such legislation can apply include where a member of the armed forces has gone missing in action; if a merchant seaman goes down with his ship; where someone cannot be found after a tragedy on an offshore installation; or where someone working in a particular Government department cannot be found after an incident while he or she was on duty, for example, an embassy worker who goes missing in a bomb blast.
25. These certificates are not usually issued by the courts but by the authority responsible for the missing person. They are issued once the authority is satisfied that the person probably died as a result of the incident. They can be used, at the discretion of the court, for probate purposes, but they cannot be used to obtain death certificates.
Social Security benefits
26. Section 8 of the Social Security Act 1998 governs the Secretary of State’s power to make decisions in relation to a person’s entitlement to a range of benefits, including decisions that a person’s spouse may be presumed to have died. Section 3 of the Social Security Administration Act 1992 enables claims for bereavement benefit to be made outside the usual twelve month period where it is difficult to establish death.
Consular Death Registration
27. The FCO has the power to issue consular death registration documents once the relevant local authorities issue official notification of the death—presumed or otherwise. This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK. (...)
Common Law Presumption of Death
29. The question whether a person who has disappeared has died may arise in many different circumstances. The effect of the terms of a gift in a will or under a trust may for example turn on whether a missing person is dead or alive. In these cases the court may have to decide whether a person is to be deemed alive or dead. Where this situation arises, there is a common law rule of evidence that if a missing person has not, despite thorough enquiries, been seen or heard of for seven years, he or she is presumed to be dead. This presumption can be used generally, but it is only a presumption and not a rule and cannot be used to obtain a death certificate. The court can accept evidence of absence over a shorter period if it wishes. In other words, an interested party does not have to wait for seven years to make an application for an order relating to the presumed death...
From time to time there have been examples of circumstances where a person has been presumed to be dead after a relatively short period. Following the tsunami in south-east Asia in December 2004, the Department for Constitutional Affairs (as it was then, now the Ministry of Justice) announced that families of people missing as a result of the disaster would be able to obtain probate without having to wait seven years if they were able to show evidence that the person was in the region at the time.
More recently, it was reported that John Darwin (who appeared to have drowned following a canoe accident but later reappeared and was jailed for insurance fraud) had been declared dead a little over a year after his disappearance.
3.3 Calls for change to the law
Until the enactment of the Presumption of Death Act 2013 there was no one piece of legislation in England and Wales which dealt with the presumption of death of a missing person who is thought to have died.
The charity Missing People has campaigned for the introduction of legislation; information about their Missing Rights Campaign is available online.
In February 2012, the House of Commons Justice Committee published its report, Presumption of death [PDF] and referred to “a legislative patchwork of bewildering complexity”. The Committee recommended, among other things, the introduction of a Presumption of Death Act to clarify the legal position. In July 2012, the Government announced that legislation to provide for a certificate of presumption of death would be introduced “when Parliamentary time permits”.
The Government’s response to the Justice Committee stated that, on the basis of experience in Scotland and Northern Ireland with presumption of death certificates and the usage of existing presumed death procedures in England and Wales, the Department had estimated that, if a certificate of presumed death were to be introduced in England and Wales, there would be about 30 to 40 such certificates issued annually.In describing the new regime the brief states that
The Act will enable an application to be made to the High Court for a declaration that a missing person, who is thought to have died or who has not been known to be alive for at least seven years, is presumed to be dead. The court will have jurisdiction to hear and determine an application if the missing person was domiciled in England and Wales on the date when (s)he was last known to be alive, or habitually resident there for the preceding year. Alternatively, the court will have jurisdiction if the applicant is the spouse or civil partner of the missing person and is domiciled in England and Wales at the date the application is made or was habitually resident there for the preceding year. (The concept of “domicile” is complex and does not have the same meaning as being resident. Anyone seeking to establish the domicile of any particular individual would need specific legal advice).
Anyone will be able to apply to the court for a declaration of presumed death, but if the applicant is not the spouse, civil partner, parent, child or sibling of the missing person, the court must refuse to hear the application unless it considers that the applicant has a sufficient interest in the determination of the application. The Explanatory Notes state that it will be for the court to decide whether any interest is sufficient.
If the court is satisfied that the missing person has died or has not been known to be alive for seven years, it will make a declaration of presumed death, stating when the missing person was deemed to have died, (which might have relevance for other matters such as property interests).
Once it can no longer be the subject of an appeal, a declaration will be conclusive as to the presumed death and effective for all purposes and against all persons. The missing person’s property will pass to others as if the missing person has died and been certified dead, and his or her marriage or civil partnership will end.
When making a declaration, the court will be able to determine any question which relates to an interest in property and arises as a result of the declaration; and to determine the missing person’s domicile at the time of his or her presumed death. The court will also have power to make any order it considers reasonable in relation to any interest in property acquired as a result of the declaration, and to direct that the value of any asset acquired as a result of the declaration may not be recovered under an order made by the court when varying or revoking a declaration.
The Act also makes provision for varying and revoking a declaration of presumed death; the effect of a variation order and other matters related to variation orders. The Explanatory Notes give as “an obvious example” of circumstances in which a variation or revocation would be appropriate being:
where the missing person returns, still alive; or where there is clear evidence of the missing person having been alive at a time later than that declared as the time of death in the original declaration.
The Registrar General will create and maintain a new Register of Presumed Deaths. Certified copies of entries in the register issued by the Registrar General will be treated as evidence of the missing person’s death without further proof.
