Charities & Non-profit Compliance & Regulatory Enforcement Construction Corporate & Commercial Employment Group Action Litigation Immigration Information Technology Insolvency & Restructuring Insurance Litigation Intellectual Property International Litigation & Dispute Resolution Private Client Property Property Litigation Tax Services GUIDE Presumption of death - a single framework
October 2014 saw the Presumption of Death Act 2013 (the “Act”) finally come into force. This Act was long-awaited as it creates the first single framework for obtaining a declaration that a missing person is to be presumed dead. This will come as a huge relief to families who have until now had to grapple with a number of different procedures for obtaining a presumption of death in relation to different aspects of a missing person’s affairs, causing delays and continued emotional upheaval.
As of 1 October 2014, families and personal that they do not have sufficient ‘interest’ in the representatives can obtain the equivalent to application. The meaning of sufficient ‘interest’ will a death certificate in respect of the missing be at the discretion of the Court and is likely to person, which will be multi-purpose and will take into account similar case law preceding the apply broadly, for example both in respect of Act. accelerating the devolution of an estate to confirming the termination of a marriage on the If the Court is satisfied on the basis of the evidence basis of the presumed death of one spouse. provided that the missing person has either died or has not been known to be alive for a period of The Act will only apply to a missing person if the at least seven years, the Court is obliged to make a missing person was domiciled in England and declaration which must include date and time of Wales on the day on which they were last known the missing person’s death. to be alive, or habitually resident in England and Wales throughout the period of one year ending Since the Act came into force there is a register of with the day that they were last known to be alive. presumed deaths at the General Register Office. In addition, where a missing person does not fall In the event that the Court is satisfied that the within one of the aforementioned categories, missing person has died but it is not clear, on the an application can be made by the spouse or evidence, as to exactly when, the Court is obliged civil partner of that missing person provided the to deem that the person had died at the end of applicant is domiciled in England and Wales or has the period of time within which the Court believes been habitually resident in England and Wales for they may have died. a period of one year on the day the application is submitted. On the other hand, if the Court is satisfied on the face of the evidence that the missing person was The application itself can be made by anyone missing for a period of at least seven years, yet is with an interest in the application although not satisfied that the person has died, the time the Court will have the power to refuse to hear and date of the deemed death will be seven years an application under the Act if the application beginning with the date after the day which the is made by someone that is not the person’s person was last known to be alive. edwincoe.com immediate family or if the Court considers In addition to the declaration of presumed death Meanwhile, where a relative/next of kin is unable the Court can make a declaration in relation to to take control of a missing person’s affairs, property acquired as a result of the declaration there are a multitude of risks including a risk of of presumed death, for example under the terms insolvency and a risk that dependants do not of the missing person’s Will. Fortunately, the Act receive the financial assistance they rely on and does specify that where a declaration of presumed need. Fortunately, the Government does seem to death is later varied or revoked, for example on the have recognised the urgent need for additional basis of new evidence, any property inherited as legislation in this area of law and we hope that an a result of declaration of presumed death cannot appropriate draft bill will follow the results of the be recovered at a later date. This will protect consultation relatively quickly, in order that the the position of beneficiaries inheriting under aforementioned risks are limited. the missing person’s Will or under the rules of Intestacy.
Although the Act represents a simpler, more practical system, it does not comprehensively deal with all issues relating to a missing person’s affairs. There has already been a consultation (which closed on 18 November 2014 - results still awaited) on the important matter of the guardianship of a missing person’s affairs during the time between when they initially go missing and the date a declaration of presumed death can be made by the Court in accordance with statute. Therefore, whilst the Act has been widely welcomed, there are clearly gaps in the framework that need to be filled.
Contact Details
For individual profiles If you would like any further information about this topic, or any other Estate Planning issue, please please visit our website: contact us using the details below. www.edwincoe.com
Nick Giles Ania Boyce Head of Private Client Associate
t: +44 (0)20 7691 4078 t: +44 (0)20 7691 4089 e: [email protected] e: [email protected]
Edwin Coe LLP 2 Stone Buildings Lincoln’s Inn London WC2A 3TH t: +44 (0)20 7691 4000 e: [email protected] Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, edwincoe.com Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing. This guide concerns the law in England and Wales and is intended for general guidance purposes only. It is essential to take specific legal advice before taking any action