Declarations of Presumed Death
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When someone has been missing for a long time, it is sometimes necessary to make the difficult decision to have them declared deceased.
Applications for a declaration of presumed death are quite rare. Our expert team is one of the very few in the country with experience in assisting clients in this area of the law and can help you if you need to consider this step.
On this page:
What is a Declaration of Presumed Death?
A Declaration of Presumed Death is sought when someone has been missing for at least 7 years and there is no evidence to suggest that they are alive.
If a family member goes missing, the emotional trauma and uncertainty for those left behind can be unbearable. It is often the case, however, that families are also left in a financial limbo since the lack of a death certificate means that they cannot access bank accounts, pension funds or insurance policies.
The Guardianship (Missing Persons) Act 2017 (which came into force on 31 July) allows family members to apply for legal status to look after and protect the property of missing persons.
The Declaration of Presumed Death Act 2013 enables family members to apply for a Certificate of Presumed Death once a sufficient waiting period has expired.
These two pieces of legislation can be used by families of missing persons to deal with the practicalities of having a relative go missing.
A Declaration of Presumed Death is a determination by the Court that a missing person is most likely to be deceased, which sits in place of a Death Certificate and allows the assets of the missing person to be dealt with.
You may also have heard of Claudia’s law, which is the guardianship a layperson can apply for themselves to allow them to deal with their missing or presumed dead relatives’ accounts: this is an area where we can advise.
Who can apply?
Family members can apply for a declaration of Presumed Death. Those family members should be either the spouse, civil partner, parent, child or sibling of the presumed deceased.
When can an application be made?
The Declaration of Presumed Death Act 2013 allows an application to be made once the person has been missing for 7 years.
How do I make an application?
The key to obtaining a declaration of Presumed Death is to get the right evidence in place before making the application to the Court. Our expert team can advise you on what evidence should be obtained and will put together the application and supporting evidence to enable the Court to reach a determination.
Notice must be served on other family members, and the requirements of the Act must be complied with.
Taking expert advice at an early stage is vital to ensuring that this difficult situation is not made harder by an application being rejected for lack of evidence.
What happens once I have the Declaration?
If the Court approves the application and grants the Declaration, then a request is made for a Certificate of Presumed Death to be issued. This can be used in the same way as a Death Certificate, and the process of administering the estate of the presumed deceased can begin as though they had just died.
If the missing person left a Will, this will dictate what happens to their Estate. If they did not, then the rules of Intestacy will apply.
Missing or Presumed Dead?
Changes brought in by the Presumption of Death Act 2013 allow relatives to apply to the High Court for a declaration of presumed death.
Usually, families will know if a loved one has died. In some circumstances, however, families 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”.
Real Life Example
You may be thinking, “My dad has been missing for some time now, what should I do?” or “How can I deal with my son’s bank account if he is still missing?” Here is a real-life example of how our team at Wilson Browne Solicitors can assist:
Mr G came to Wilson Browne after having previously filed his own Guardianship (Missing Persons) Act 2017 application after his son had been missing for a period of 8 months.
We assisted Mr G in his application to the Court to apply for a presumption of the death of his son, ensuring we were compassionate and understanding of such a difficult period of time for Mr C. This included liaising with the Police to obtain a statement surrounding the missing person’s circumstances and completing enquiries.
We obtained a Court Order for Mr G, which allowed a certificate of presumed death to be issued. This could then be used in the same way as a death certificate in order to deal with his son’s estate.
