When a relative or a loved one goes missing, the emotional impact and uncertainty can be extremely difficult. Alongside this, there can come a point where practical and financial issues need to be addressed, particularly where property, bank accounts or an estate cannot be dealt with because there is no death certificate.
You may be an executor named in a Will but unable to obtain a Grant of Probate, a beneficiary waiting for an estate to be administered, or a family member faced with property and financial affairs which cannot simply be left unresolved indefinitely.
In England and Wales, the Presumption of Death Act 2013 provides a legal route for the High Court to declare that a missing person is presumed to have died.
What is the Presumption of Death Act 2013?
The Presumption of Death Act 2013 allows for an application to be made to the High Court for a declaration that a missing person is presumed to be dead.
To make a declaration, the court must be satisfied that either:
- the missing person has died; or
- the missing person has not been known to be alive for at least seven years.
The distinction is important. If there is sufficient evidence to satisfy the court that the person has died, there is no requirement to wait seven years. Whether an earlier application can be made will therefore depend upon the circumstances surrounding the disappearance and the evidence available.
There are also jurisdictional, evidential and procedural requirements which must be met. For example, the missing person must have been domiciled in England and Wales when they were last known to be alive, or habitually resident here throughout the preceding year. Alternatively, where the applicant is the missing person’s spouse or civil partner, jurisdiction may be established by their own domicile or habitual residence in England and Wales.
Why might a declaration of presumed death be needed?
A person going missing does not mean that their family or executors can automatically begin dealing with their estate as though they had died. Without the necessary legal recognition of the death, important financial and estate matters may remain unresolved.
A declaration may need to be considered where:
- you are named as an executor in the missing person's Will but cannot progress the administration of their estate;
- property remains registered in the missing person's name;
- bank accounts and other financial assets cannot be dealt with;
- beneficiaries cannot receive their inheritance;
- the missing person's presumed death affects an interest in another estate or trust; or
- the continuing uncertainty is preventing the family from dealing with the person's affairs.
A declaration establishes the person's presumed death and the date and time at which they are treated as having died. This can provide the legal certainty needed to move matters forward.
Who can make an application?
A spouse, civil partner, parent, child or sibling of the missing person can apply without having to establish a separate "sufficient interest". Other people can also apply, but the court must be satisfied that they have a sufficient interest in the outcome.
This can be particularly relevant for executors, beneficiaries, more distant relatives and unmarried partners.
In Re Fisher [2023] EWHC 979 (Ch), the court accepted that an executor named in the missing person's Will could have sufficient interest to make an application, even though the Will had not yet been admitted to Probate. For an executor faced with an estate which cannot otherwise be progressed, this can be an important route to consider. A successful declaration does not itself prove the Will, however, and a separate application for a Grant of Probate will still be required.
The position for unmarried partners can be less straightforward, as a cohabitee does not automatically fall within the categories identified by the Act. This does not necessarily prevent a cohabitee from applying, but they may need to establish that they have a sufficient interest in the outcome. If you are unsure whether you are entitled to apply, it is sensible to obtain advice before taking any formal steps.
What does an application involve?
An application is made to the High Court and there are specific procedural requirements which must be followed, including giving notice of the claim and advertising it appropriately.
Evidence is also important. The court will need information about the missing person and the circumstances of their disappearance, including details of the steps taken to trace them or establish when they were last known to be alive.
Every disappearance is different. The key question is therefore not simply how long someone has been missing, but whether the circumstances and available evidence provide a basis for the court to make a declaration.
How we can help
If these circumstances sound familiar, or you are dealing with an estate that involves somebody who is missing or presumed to have died, please contact Samantha Evans at mfg Solicitors on 01562 820181 or email samantha.evans@mfgsolicitors.com to discuss your circumstances and how we can assist.