Presumption of Death Act 2013: an update to missing person laws
The news surrounding the discovery of three missing women in Ohio, abducted and held for more than ten years, and the case of Brenda Heist, the Pennsylvania accounts clerk who recently reappeared after 11 years missing, have raised questions about the law pertaining to a missing person and presumptions of death.
On 26 March 2013, the Presumption of Death Act 2013 received Royal Assent. The Act was first introduced as a private member’s bill by John Glen MP in 2012 and received widespread support in both the House of Commons and Lords.
While the law has received Royal Assent, its substantive provisions are to be brought in to effect by statutory order, which has not yet taken place. From a review of the statute however, the changes surrounding this area of law are clear.
In a previous article, I explored the law of England and Wales in relation to the presumption of death of a missing person prior to April 2013. The law has best been described as “piecemeal”, with no single piece of legislation that governed the processes bereaved family members needed to pursue. This was a very complicated, difficult and expensive process for anyone with a family bereavement of this nature to go through.
The new Act, which can be read in full here, has attempted to simplify this process and bring England and Wales in line with the legislation already in effect in North Ireland and Scotland. The Act applies where a person who is missing is thought to have died or has not been known to be alive for a period of at least seven years, and allows family members or loved ones to apply to the High Court for a declaration that the missing person is presumed to be dead. Such a declaration is conclusive of the missing person’s presumed death, includes the date and time of that death and is effective for all purposes, including ending of the missing person’s marriage and dealing with property.
By these sections alone, the new Act simplifies and streamlines the process for the loved ones of a missing person, allowing one application to be effective for all purposes, instead of the previous rules requiring declarations for each specific purpose. The Act also resolves potential questions surrounding time-sensitive assets of the missing person, such as insurance policies.
In the event that an individual, declared presumed dead under the new Act, reappears as a later date, the declaration may be varied or revoked. It is worth noting, however, that in the 34 years of Scottish legislation similar to that introduced in England and Wales this year, only one person declared presumed dead has since reappeared. The Ministry of Justice estimates that around 30-40 applications for a presumption of death certificate would be made each year.
While appears that the new Act will go a considerable way towards clarifying the law and assisting families for whom such declarations are required, there has been some criticism that the Act does not go far enough, particular by failing to adopt ‘guardianship’ provisions to manage the affairs of people missing within that seven-year period. However, it has been made clear by a number of people – not least John Glen MP who introduced the then-bill – that this Act is considered the first stepping stone to further legislation in this area.
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Posted on Jun 7th, 2013 by Lyons Davidson