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How do you know when someone has died?

Reasons to choose Wilson Browne

Sadly, this is usually a silly question.  It is usually obvious when someone has died and the process of grieving and making funeral arrangements can begin.

But when someone disappears and cannot be found, everything you think you understand about death is turned on its head.

The Presumption of Death Act 2013 sets out the basis upon which someone who has gone missing can be declared deceased. Section 2 of the Act provides:

(1)    On an application under section 1, the court must make the declaration if it is satisfied that the missing person—

(a)  has died, or

(b)  has not been known to be alive for a period of at least 7 years.

(2)    It must include in the declaration a finding as to the date and time of the missing person’s death”

In the recent case of Johnson v Persons Unknown [2020] the problem was in working out when the missing person had died.  In that case the deceased suffered from dementia and sadly went missing in March 2011 after going to a dance class. He never came home.

His Will was dated 1996 but in 2008 he entered in to a Civil Partnership which revoked his Will.  His Civil Partner then severed the joint tenancy in 2016 and died in 2017.

On an application for a declaration of presumed death, the question arose as to when the missing person had actually died.  It made a real difference because if the deceased died before the tenancy was severed in 2016, the Civil Partner would have inherited his share of the property.

If the death was after the severance of the tenancy then on intestacy the Estate could go to the Civil Partner but if the missing person died after his Civil Partner then his brothers would inherit under the intestacy provisions.

The Court looked at Section 2(3) of the Act which provides:

“Where the court—

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died,

the finding must be that the missing person is presumed to have died at the end of that period”  (emphasis added)

Given that there had been no trace of the missing person since he disappeared the Court concluded that the end of the “period” was the date of the hearing, death being declared presumed at 11:30 on 5 February 2020.

On this basis the brothers of the deceased inherited his Estate (including his share of the property) under the intestacy provisions.

Our Contentious Trusts and Probate Team has had the privilege of acting for a family in a Presumption of Death Act application.  These cases are incredibly difficult – the decision to seek a formal declaration of presumed death is not easy.  Asking the Court to declare a death draws a line and can bring an end to the hope that has been harboured that someone will one day come home.

Certainty from the Court about when death will be declared is welcome and will hopefully give some comfort to families who need to make this most difficult of applications.