Trusts, Wills & Estates

A new Act to help families of missing persons

Each year approximately 250,000 people are reported as missing in the UK. Some of these people are never seen again, and, occasionally, no conclusive evidence of the missing person’s death ever comes to light.

Until recently, no procedures existed in England and Wales for a family to have their relative declared dead for all purposes. A number of different procedures had to be followed for different purposes, making a distressing situation even more difficult. This situation has now been improved by the Presumption of Death Act 2013, which came into force on 1 October 2014.

The Presumption of Death Act (“the Act”)

Under the provisions of the Act if a person is missing and is thought to have died, or has not been known to be alive for at least seven years, anyone can apply to the High Court for a declaration that the missing person is dead. If the person applying is someone other than the missing person’s spouse, civil partner, child or sibling, then the court would have to be satisfied that the applicant has sufficient interest in the outcome of the application. A major non-family beneficiary under the missing person’s Will might perhaps fall into this category.

An application can be made if the missing person, or his or her spouse or civil partner, was domiciled in England and Wales or had been living here for at least one year before the person disappeared.

If the court is satisfied that the missing person is dead it will make a declaration to that effect, or if the person has not been known to be alive for at least seven years, the court will make a declaration that the missing person is presumed to have died at the expiry of the seven year period since he or she was last known to be alive. This declaration is effective for all purposes including the ending of a marriage or civil partnership.

It is important to note that if evidence can be produced that will satisfy the court that the missing person is dead, then it is not necessary to wait seven years before making the application. If, for example, John took part in an ocean going yacht race in 2014 and his boat disappeared in a storm, but his body was not recovered, then it would be possible to apply to the Court for a declaration straightaway. By comparison, if Mark had walked out of the house one evening to buy a newspaper and never returned, then it is likely that his family would have to wait for seven years before applying for a declaration, unless evidence of his death came to light.

At the same time as making the declaration with regard to the missing person, the Court has power under the Act to make orders with regard to property interests. In addition, a person with sufficient standing can apply to the Court for a variation or revocation of the order. So if an order was made that Mark was presumed dead after Mark had been missing for at least seven years, and evidence then came to light that he was in fact living abroad, the original declaration could on application be revoked. If Mark’s wife had married in the meantime the validity of that marriage would not be affected by the revocation of the original declaration.

It is expected, on the basis of experience in Scotland where a similar Act is already in force, that about 30-40 applications will be made each year. And finally, if the Queen ever disappears, s 21 of the Act specifically provides that no-one can make an application for a declaration in respect of her person

For further information about the administration of an estate, please contact a member of the private client team.