The 2012 House of Commons Justice Committee Presumption of Death Report - leading to the Presumption of Death Act 2013 - states
1. On 21 July 2011 we announced our inquiry into the law and processes relating to presumption of death. Concerns surrounding this issue were brought to the attention of some of our Members by their constituents, particularly about the cumbersome and Byzantine procedures which the relatives of missing people are required to negotiate. The UK Missing Persons Bureau, which collates data on those reported missing, told us that under 1% of the 200,000 people who are reported missing every year remain un-located after 12 months. In September 2011, the Bureau had around 5,500 outstanding missing persons and approximately 1,000 unidentified people, bodies and remains on its database. The number of people seeking to resolve issues concerning missing relatives at any one time is, therefore, relatively small, but those who are in that situation are inevitably already in distressing circumstances. We therefore decided to examine both the relevant law and procedures to establish whether there were as effective and efficient as possible.
2. Our terms of reference focused on four specific areas: •
• Does the current system work effectively? • Does the current system create difficulties for families, and if so, how can these be resolved? • What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts? • Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take? ...
3. When a person dies the executors of the will, anyone named in the will or, in the absence of a will, next of kin are able to obtain a grant of probate (or letters of administration if the deceased died without making a will) on production of the death certificate. Death certificates state that two doctors are satisfied that the deceased died from an identified cause. When a person goes missing, however, even if the circumstances of the disappearance strongly suggest he or she has died, the impossibility of a death certificate being issued leaves their affairs unresolved.
4. The law that relates to resolving the affairs of people who go missing is an extensive mixture of statutory and common law provisions; indeed, one witness described it as a “crazy paving of legislation, of statutory and non-statutory provisions.” The most well- known provision, that the court will assume a person to be dead when there has been no evidence of his or her continued existence for seven years, is a rebuttable common law presumption. The court will usually presume death if: there is no evidence that the missing person has been alive during the previous seven years; the people most likely to have heard from the missing person have not had any contact; and, during those seven years, inquiries have been made for the missing person, without success. If not satisfied on the facts of the case the court will reject the application. An application may be allowed before the person has been missing for seven years if the facts of the case allow, for example if inquiries were thorough and wide-ranging. A court order stating the missing person is presumed to have died will resolve the issue that is the point of the application, but not others. This may leave a need for multiple applications: for example an order sought to pay out life insurance could not then be used to put an end to a joint mortgage. The Ministry of Justice told us that no central records are kept of the numbers of applications for such orders, or for the number granted by the courts.
5. An alternative to a presumption of death, and one that does not require the applicant to wait seven years, is an application under the Non-Contentious Probate Rules. Clifford Chance, a law firm who have undertaken pro bono work for Missing People, described the process as follows:
The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person "to the best of his information or belief" in cases where death is presumed rather than proven. Such leave can be taken at any point after the person's disappearance, i.e. there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person's affairs.
6. Specific facts may mean that probate will be granted without such an order. An example was the Asian tsunami in 2004. People who could prove their family member was in the area at the time were allowed by the then Department of Constitutional Affairs to apply for probate on production of the evidence.
7. The statutory provisions applying to applications to resolve the affairs of missing people are found in a number of acts going back to the nineteenth-century. Clifford Chance listed the statutory provisions as including: the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non-Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998.
8. Each statutory provision is designed for specific situations, an example being section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a spouse or civil partner can dissolve the marriage or civil partnership if the court is satisfied, on the balance of probabilities, that the missing person is dead. It is unclear, however, whether such an order can be used to try to resolve other issues. We heard from one solicitor who had found it could not, despite the clear intention of the judge who made the order.
9. The Foreign and Commonwealth Office also has the power to issue a “consular death registration document” for people who die or who are presumed to have died abroad. The legal status of this document is unclear. The Ministry of Justice told us: 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. ...
10. The UK Missing Persons Bureau (UKMPB) told us that the problems facing families seeking to resolve a missing relative’s affairs could be summarised as follows: • the lack of knowledge and understanding and expertise evidenced by police and legal professionals; and • the need to follow different processes to dissolve a marriage and administer a missing person’s affairs.
11. We received ample evidence of the first issue from many of our witnesses. Vicki Derrick, whose husband Vincent Derrick disappeared on a works night out in 2002, told us “I initially spoke to the police for advice and guidance who suggested I contacted a solicitor...I have spoken to quite a few solicitors and have yet to meet one who has dealt with anything like this.” Her evidence was echoed by Rachel Elias, whose brother Richard Edwards went missing in 1995, who told us her “family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to ‘go away and look further into the matter’ before he could proceed and assist us.”
12. R Nelson, whose brother disappeared in 2000, found “most solicitors have essentially no experience in this field.”
13. Stephanie Hynard, whose husband went missing in March 2011, told us that one of the police authorities with which she dealt was “unable to provide me with any information about the correct procedure to follow in dealing with legal issues or whom to turn to for advice”. The police are usually the first place families go following the disappearance of a relative. However, the UKMPB told us that referrals to sources of advice “are seldom made because police officers are unaware of or unknowledgeable about existing provisions”. They also told us that although a lack of specific training in this area could be a factor, “the complexity of the diverse processes and legislation regarding presumption of death compounds this problem”. Martin Houghton-Brown, of the charity Missing People, which provides information and support for the families of missing people, told us the reason why families found it difficult to access information was the complexity of the relevant law: “Because the process is, in effect, a crazy paving of legislation, of statutory and non-statutory provisions, it is very unclear how families should proceed.” In addition, and as illustrated by the evidence of Mrs Derrick and Ms Elias, long-term missing people cases are relatively rare. The UKMPB told us that research suggests, of the 200,000 people who are reported missing every year, 99% are found within a year. Of the 2000 who remain missing many, particularly young people, are likely to have few or none of the financial and legal issues that are usually the reason families are compelled to take legal action. Inevitably, therefore, the police, lawyers, people working in the financial sector and others with whom families come into contact are unlikely to have either experience or training in advising the families of people who are missing long-term. The Association of British Insurers told us that the current system could work with regard to insurance policies when the insurance company was involved at an early stage. Otherwise, the evidence we received was unanimous in agreeing that the combination of the complexity of the law, and the rarity of cases, made obtaining reliable information difficult.
14. In addition, Patricia Barrett, of Clifford Chance, told us “lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and statute law provisions”,a situation which is likely to have a substantial impact on the cost of proceedings.
15. Not only is this emotionally draining and costly for the family, it can also lead to a messy legal position in which the missing person is declared dead for one purpose but remains legally living for another. Vicki Derrick told us that, despite the fact her husband had gone missing eight years previously, and their marriage had been dissolved on those grounds, she was still unable to take his name off their joint mortgage: “There is absolutely nothing I can do with my mortgage. My husband’s name is on that mortgage, and he is not around to sign it over to myself.” Mrs Derrick told us that without the financial, as well as emotional, support of her family she “would probably have had my house repossessed, because I would not have been able to keep up the mortgage repayments” following the loss of her husband’s income, but without the life insurance dividend she would have received if Mr Derrick had been known to have died. Dr Nelson had to have face-to face interviews with the Probate Registry and threaten to involve his MP to convince it to accept his personal submission for probate for his brother’s estate, despite the evidence his brother had been missing for over 10 years.
