Each year in the UK around 250,000 people are reported missing. Most of them are found but a significant minority each year remain missing. The Presumption of Death Act 2013, which marks a significant reform in the area of law relating to missing people, will come into force in England and Wales on 1st October 2014. It follows similar Acts in Scotland and Northern Ireland.
In the absence of a body it is very difficult to register a person’s death or to obtain a death certificate. There is no legal mechanism which allows someone to manage the affairs and assets of a missing person. A power of attorney, if one exists, should only be used if a person is known to be alive. A missing person exists in a legal limbo where dependants may have no access to funds, debts will be unpaid and houses repossessed.
Many people believe that the common law presumption of death means that no application for a death certificate can be made until 7 years have passed. It is, in fact, possible at any point after a person’s disappearance to apply to a Probate Registrar for a ‘leave to swear death order’. The Order enables probate to be granted to the estate of a missing person which can then be administered. However, if a surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, currently a separate application must be made to court for a decree of presumed death and dissolution of marriage.
The new Act provides a procedure for an application by an interested party to the High Court for a declaration of presumed death. The court will make a declaration if it is satisfied that either the missing person has died or that the missing person has not known to be alive for the past 7 years.
Notice of the application must be served and it must be advertised in accordance with rules of the court (details yet to be published).
A declaration is conclusive proof of the date of the missing person’s presumed death. It will dissolve their marriage or civil partnership and will have the same effect as regards property ownership as death. The declaration becomes conclusive when it is final and no longer subject to appeal (probably 21 days), after which the court will send a copy of the declaration to the Registrar General who will make an entry in a new Register of presumed deaths. A certified copy of the entry will be available from the Registrar on payment of a fee (amount to be confirmed).
If it later becomes clear that the declaration is incorrect – e.g. the missing person returns – an application can be made to the High Court for an order to vary or revoke the declaration. The court cannot make a variation order where more than 5 years have passed since the date of the original declaration unless there are exceptional circumstances. A variation order cannot affect interests in property which someone has acquired as a result of the declaration of presumed death. It will also not revive a marriage or civil partnership, but it does provide the court with power to make an order relating to property interests (within certain limits).
If someone has applied for a declaration of presumed death or a variation order you may intervene in the proceedings if you are the missing person’s spouse, civil partner, parent, child or sibling. Otherwise you must ask the court for permission to intervene.
The current ‘leave to swear death’ procedure is still relevant, as it will continue to be available after 1st October 2014. An application under NCPR, rule 63 is made to a Probate Registrar by way of an affidavit and other supporting evidence where necessary. As no hearing is required it is likely to remain an attractive option in some cases as it will be cheaper than an application under the Act, which requires a hearing before a high court judge. For spouses and civil partners however, the new procedure will probably be more cost effective if a dissolution is required.
The campaign for presumption of death law reform is part of the charity Missing People’s wider “Missing Rights” campaign launched in December 2010, which also includes ongoing calls for a system of guardianship to be introduced. Presumption of death allows families to resolve a missing loved one’s affairs in cases where a return it unlikely, whereas guardianship would enable families to manage and maintain their affairs in case of a return.
A Ministry of Justice consultation closes on 18th November 2014 in relation to guardianship.
The new Act has been welcomed by those of us who see the devastation that a disappearance can wreak on a family and the proposed guardianship system would be a hugely helpful in mitigating the trauma caused to a family when a loved one goes missing.
Sarah Young is a Partner with Ridley & Hall solicitors in Huddersfield. She specialises in contentious probate cases and has a particular interest in cases involving missing people and supports the work being done by the charity Missing People.
For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on her direct dial 01484 558838 or her mobile 07860 165850.