Although advanced rescue searches were carried out, the rescue services were unable to find the family member. This not only added to the emotional difficulties for the family but also meant they were unable to start the estate administration process, as without proof of death they could not register the death or obtain a death certificate.
About the Presumption of Death Act
It was to cover tragic circumstances such as these that the Presumption of Death Act was introduced. This provides for certain individuals the opportunity to make an application to the High Court for a declaration of presumed death and thereafter obtain a death certificate to enable them to deal with a missing person’s affairs.
Under the Act, one can apply for a declaration when a missing person is: (i) thought to have died or (ii) has not been known to be alive for a period of at least seven years.
For most people, however, waiting seven years will be too long and stressful. Action is needed sooner in order to protect assets such as the missing person’s house, whether or not it is subject to mortgages.
Additional complexity for international clients
In this case, there was the additional complexity of the court’s jurisdiction to consider because, like many of our clients, the circumstances were international in nature. The missing person was born and raised in Europe, lived permanently in London for many years, but was at the time of his death temporarily in mainland Europe. Under the Presumption of Death Act, the jurisdiction of the High Court is based on domicile or habitual residence, or an applicant having sufficient interest in a claim.
The High Court of England and Wales was the only jurisdiction that could offer our client a realistic resolution as the other European options required our client to wait 10 years from the date their relative went missing.
Having applied to the High Court, which made the declaration at the first hearing, and following the statutory 21-day appeal period, the declaration was sent to the General Registry Office. We were then invited to apply for a certificate of presumed death. Our client is now in a position to proceed with the estate administration.
The procedure to obtain a declaration of presumed death is an evidence-heavy hurdle. Such a procedural application can be very useful for clients who find themselves in these tragic circumstances, without the need to wait for a period of seven years.
The information contained in this article is general guidance only. The application and impact of laws can vary widely depending on the specific facts involved. The information in this article is provided with the understanding that the authors and presenters are not giving legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with professional legal, tax or other competent advisers. Before making any decision or taking any action, you should consult a Child & Child professional.