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The damage caused by ‘Superstorm’ Sandy across the Eastern seaboard in the USA is still being analysed and will take considerable time to be dealt with fully. In this type of catastrophe, the death of a loved one is devastating; but when that loved one is missing and presumed dead, the situation is compounded.

For the purposes of this article only, individuals who fall under the law of England and Wales will be considered – both Scotland and Northern Ireland have legislation that is straightforward in comparison to the piecemeal law of England and Wales.

Missing people in UK

How the presumption of death of a missing person will be dealt with invariably turns on the facts of the disappearance.  There are a number of legal procedures that can assist in dealing with the estate of a missing person and the absence of a death certificate. This article looks at the more regularly used devices.

The most commonly understood method of dealing with the estate of a missing person is the ‘seven-year rule’.  This is a rebuttable presumption that, after seven years of an individual being missing, they may be proclaimed dead and their affairs dealt with accordingly.  What is not more commonly known is that the declaration is specific to requirement and is not a general declaration of death.   For example, the normal administration of an estate could require a declaration for the purposes of life insurance policies, but this declaration could not then be used as proof of death and other declarations may be required to satisfy other companies or agencies .  It also requires evidence of all investigations and sworn evidence from the people they would be mostly likely to contact that they have not heard from or seen the missing person for seven years.  If any contact is received from the individual, then the presumption is rebutted.

In any event, seven years is a long time for any family to wait in order to move on with the affairs of their missing loved one, and it is only after that period and the declaration to the court that probate may begin. By this point, the finances of a person who has been missing for seven years are likely to be substantially reduced and will have been at risk of legal sanction or abuse for an extended period.

However, there are some circumstances in which the family of a missing person need not wait such a long period of time before moving forward.  In catastrophes such as 2004’s Indian Ocean tsunami, the devastation caused extensive loss of life.  The resources of the local government and the nature of the disaster itself were such that it was impossible to recover the bodies of all those killed.  On that occasion, the Department for Constitutional Affairs (now the Ministry of Justice) confirmed that families would not be required to wait seven years for a presumption of death, if they could provide evidence the individual was in the area of the tsunami at the time.  Likewise, the armed forces can issue certificates presuming the death of an individual under their authority, when the person in question has gone missing in action.

Non-Contentious Probate Rules

There is also scope for assistance under the Non-Contentious Probate Rules for an application to the court for leave to swear to a death.  In these circumstances, not only must an application be made to the court but the death must be sworn to in order to administer the estate in accordance with the relevant will or intestacy.  This leave to swear to a death does not replace a death certificate, however, and is only an administrative facility in managing the estate: it does not replace a death certificate and is not, by itself, conclusive proof of death.

Declaration of death

Each of these methods goes part-way to dealing with the administrative problems that occur in a less-than-straightforward case.  However, it is important to be aware that no single one of these methods is comprehensive or easy to accomplish.  While it is perhaps correct that declaration of the death of a missing individual should not be easy to achieve, the emotional impact of each of these complex legal methods can be distressing for the personal representatives to deal with.  To a family who have already gone through the pain of losing a family member in tragic circumstances, it must surely seem that the requirements imposed by an over-complicated legal patchwork are nothing less than further victimisation.

Presumption of death certificate

The problem was recently picked up by the government, who have put forward a bill to introduce ‘presumption of death’ certificates.  This is not in itself a new development: private members’ bills seeking simplification of the law in this area are proposed every few years.

The new bill recognises the success of the legislation already in effect in Northern Ireland and Scotland, and aims to adopt a similar process.  It is, however, likely that any legislation we see now will be substantially altered by the time it reaches assent – if it gets to that stage at all.  In the meantime, we can continue to watch and wait, in the hope that this overlooked area of law can finally be made clear.

For more information on presumption of death or any of the other issues raised in this article, please contact our Private Client Services team us on 0117 904 6000.