Summary and Background
3.Under the law of England and Wales the disappearance of a person does not affect the ownership or control of their property and affairs. In such circumstances it may be difficult or impossible for those left behind to obtain a death certificate if they believe the missing person must be dead. Without a death certificate, the missing person will for legal purposes generally be assumed to be alive. In these circumstances there are a number of specific procedures under which the missing person may be presumed dead. In most of these cases the presumption of death is limited to the purposes of the specific procedure in question. The specific procedures include:
Coroner’s Inquest under section 15 of the Coroners Act 1988;
Decree of Presumption of Death and Dissolution of Marriage under section 19 of the Matrimonial Causes Act 1973;
Presumption of Death Order under section 37 of the Civil Partnership Act 2004;
Leave to swear death order under Rule 53 of the Non-Contentious Probate Rules 1987;
Determinations of entitlement to benefit by the Secretary of State under section 8 of the Social Security Act 1998; and
Consular Death Registration.
4.In addition, where the question of whether a person is alive arises in the course of litigation generally, an evidential presumption that a person is to be deemed dead after a seven year absence may be applied. This presumption can, however, be rebutted
5.People left behind by a missing person may therefore have to use various procedures to deal with different aspects of the missing person’s property and affairs. Some of these procedures may lead to the issue of a death certificate, such as an inquest under section 15 of the Coroners Act 1988; others, such as leave to swear death under Rule 53 of the Non-Contentious Probate Rules 1987, will not. Different procedures may, for example, have to be followed, therefore, to end a missing person’s marriage or civil partnership on the one hand and to obtain a grant of probate to administer his or her estate on the other.
6.The Act will introduce into the law of England and Wales a new court based procedure enabling those left behind to obtain a declaration from the High Court that the missing person is to be deemed to have died. If the High Court has jurisdiction and the application is properly made by a person entitled to make it, the court will make the declaration if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years. The court will send a copy of the declaration to the Registrar General for England and Wales when it can no longer be the subject of an appeal. At that time the declaration will be conclusive as to the presumed death and effective for all purposes and against all persons. The missing person’s property will pass to others in the same way as if the missing person had died and been certified dead in the normal way and his or her marriage or civil partnership will end as a marriage or civil partnership ends on death.
7.The Registrar General will then enter details of the death of the missing person in a new Register of Presumed Deaths, which will be linked for search purposes to the registers of deaths maintained under the Births and Deaths Registration Act 1953. The new register will be created and maintained by the Registrar General and certified copies of entries in the register issued by the Registrar General will be treated as evidence of the missing person’s death without further proof. The certified copy, in effect a certificate of presumed death, will be able to be used by those left behind to deal with the property and affairs of the missing person as if he or she had actually died and a death certificate had been issued.
8.If, following the making of a declaration, facts emerge that require the declaration to be revoked or varied the High Court may on application make a variation order. Once the variation order is beyond appeal the court will send it to the Registrar General who will amend the register.
9.When making a declaration or a variation order the High Court can also decide questions and make orders relating to property acquired as a result of the declaration or the variation order and to the domicile of the missing person at the time of his or her death.
10.The Act broadly follows the form and content of the Presumption of Death (Scotland) Act 1977 and the Presumption of Death Act (Northern Ireland) 2009 and is considered to be consistent with the Council of Europe’s 2009 Recommendation on principles concerning missing persons and the presumption of death.
11.Based on experience in Scotland and the level of use of existing procedures in England and Wales it is expected that there may be about 30 – 40 declarations made annually in England and Wales, but very few variation orders.