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Missing or Presumed Dead?

Reasons to choose Wilson Browne

Recent changes in the law allows relatives to apply to High Court for declaration of presumed death.

Usually families will know if a loved one has died. In some circumstances, however, family lose touch with one another and years later it appears the missing relative is most likely to have died.

In such cases, where a declaration is required to allow the “deceased’s” estate to be dealt with, the High Court can be asked to intervene.

For such a drastic determination to be made the applicant will need to show that they are either the spouse, civil partner, parent, child or sibling of the presumed deceased and that they have been missing for 7 years or are believed to be dead.

Evidence must be provided to the Court to show that the subject of the application treated England and Wales as a permanent home for the last year they were known to be alive.

There are also strict requirements to advertise the application in the local press (not always as straightforward as it sounds) and to file further evidence with the Court before the final hearing.

Ultimately the Court will make the Order if all the evidence leads to the conclusion that the claim is made out but such Orders are not made lightly.

As hard as a loss is, not knowing if someone has died brings its own special pain. Orders of this sort aim to go some small way towards bringing closure for families by allowing them the means by which to deal with the practical aspect of a “death”.

Presumption of Death applications

When a person goes missing they are usually found. Sometimes though, they stay missing for many years and family members will need to deal with their affairs.

The Presumption of Death Act 2013 allows persons who have been missing for 7 years or more to be declared Presumed Deceased.

A Certificate of Presumed Death can then be used in the same way as a Death Certificate to apply for a Grant of Probate.

Such a Certificate also automatically ends a marriage or civil partnership.

How do I apply?

The Court will issue a Declaration of Presumed Death if it is satisfied either;

  • That the missing person has died; or
  • That the missing person has not been known to be alive for at least 7 years.

Evidence will need to be collated to show when the person was last seen, what enquiries have been made to find them and why they are presumed to have died.

The strength of the evidence provided to the Court is crucial – this matters for more than how long the person has been missing for.

Applications are made to the High Court. If a Declaration of Presumed Death is granted the General Register Office will issue the Certificate of Presumed Death.

Who can apply?

An application for a Declaration of Presumed Death can be made if;

  • The missing person was domiciled in England and Wales; or
  • The missing person was living in England and Wales for a year before they went missing; or
  • The spouse or civil partner of the missing person is domiciled in England and Wales or had been living here for a year before the person went missing.

Only someone with “sufficient interest” can make an application – that usually means that the application should be made by a close relative.

Why should I apply?

When someone goes missing time stands still for those left behind. It can feel like the wrong thing to do to take steps to deal with the missing person’s finances and assets.

Unfortunately it is often the case that the missing person will leave behind a mortgage, debts, children who need to access funds for their maintenance, a spouse or partner and all manner of other problems that someone will need to sort out.

Contacting creditors etc. at an early stage can help to ensure that they understand what is going on but in the end they will want paying.

Equally, if your spouse or civil partner goes missing you may prefer to seek a Declaration of Presumed Death (possibly allowing a claim on life insurance or pensions) rather than a divorce etc.

The decision to apply for a Declaration of Presumed Death is not an easy one but it may be a necessary step.

What evidence do I need?

The more evidence you can present to the Court to show that the missing person is most likely to be deceased, the easier the application process is likely to be.

We recommend putting together as much of the following as possible:

  • Police report and any investigation updates
  • Statements from family members
  • Statements from friends/colleagues
  • Bank/building society documents to show that accounts remain untouched.
  • Details of any newspaper/social media campaigns or publicity and the response received.
  • Information from GP/hospital/usual pharmacy (this information cannot always be obtained but a GP may be prepared to write a supporting letter).

How much will it cost?

The Court fee is £480.00, paid when the application is lodged. It will also be necessary to pay for a newspaper advertisement and (if you are successful) the Certificate (£11.00).

What happens?

Once the evidence has been collated, the application can be made to the High Court.

If the application is not contested and the Court is happy with the evidence, the Declaration will be granted.

Sometimes the Court asks for additional evidence before making a final decision.

If there is a dispute there will be a detailed hearing so that the Court can hear evidence from all interested parties and decide whether to grant the application.

Once the Declaration of Presumed Death has been granted the applicant can;

  • Apply for a Certificate of Presumed Death and
  • Apply for a Grant of Probate or Letters of Administration (depending upon whether or not the missing person left a Will).

For more information contact Partner Jennifer Laskey who has successfully guided clients through this process.

Other organisations providing help include

Our Contentious Probate Team can help with applications of this nature and understand the law, evidence and procedure involved.

Other organisations providing help include

Jennifer Laskey

Posted:

Jennifer Laskey

Partner

Jennifer is a Solicitor and Partner with 21 years experience advising clients in relation to litigated Will disputes. A Legal 500 recognised lawyer, Jennifer is a full member of ACTAPs and has resolved multi-million pound disputes for clients in Courts across England.