After bringing the first claim of its kind in the High Court in 2015, Gwyn Evans discusses how the Act will bring some relief to grieving families.
Without a death certificate, a person is generally assumed to be alive. Prior to 1 October 2014, if someone disappeared it could be difficult or impossible to obtain a death certificate. Different procedures had to be followed to end a marriage or civil partnership on the one hand and to obtain a grant of probate on the other. An Inquest under s 15 of the Coroners Act 1988 would have led to the issuing of a death certificate. An application under rule 53 of the N-CPR 1987 would not. There were real difficulties regarding ownership and control of the missing person’s property, neither of which changed as a result of disappearance.
It took Rachel Elias, sister of “Manic Street Preachers” lyricist / guitarist Richey Edwards, 13 years to register her brother’s death, the procedure for the registration itself having taken over three years. Her evidence to the Justice Select Committee Inquiry into Presumption of Death can be found here http://tinyurl.com/qhcute6.
The Presumption of Death Act 2013 came into force on 1 October 2014 and provides a simple route for the High Court to make a declaration of presumed death. This is conclusive against all persons and for all purposes, including the acquisition of interests in any property and the ending of marriages / civil partnerships (CPs). The court has power to determine the domicile of the missing person at the time of death (important for obtaining a grant of probate, and should anyone be contemplating a claim under the I(PFD)Act 1975). The Act is powerful, enabling the court to make any order it considers reasonable in relation to any interest in property acquired as a result of the declaration – that includes a freehold or leasehold estate in land or rights of ownership over the whole or part of the property in question. Furthermore, an order can be made protecting an asset, which has been acquired as a result of a declaration, from being recovered in a subsequent variation or revocation claim.
Third Party Disclosure
The Act gives the court powers - on application or of its own motion - to obtain disclosure from third parties (e.g. as to state benefits, passports or bank accounts). This information would be almost impossible to obtain otherwise, in that third parties would likely refuse to deal with relatives of a missing person.
The date of the presumed death is the latest date either in a period of 7 years since the missing person was last known to be alive, or the latest date in a window of time in which death is known to have taken place.
The claim must be made under Part 8 CPR 1998, to either the Chancery or Family Divisions (it matters not which – CPR 57.18). An applicant / claimant must either be the missing person’s spouse, civil partner, parent, child or sibling, or have a sufficient interest. The procedure to follow is set out in CPR Part 57 and PD57B. The claimant must advertise in the press local to the last known address of the deceased using specified wording (in practice the court may well approve an online advertisement – it has done so for the author of this article). It is mandatory for certain prescribed information to be provided (curiously only if it is “known” – CPR 57.19 and PD 57B § 1.1) as to the missing person, their property, steps taken to trace them, notice given (as is mandatory) to other relatives and so on.
Return of the Missing Person
Should the missing person return, the statute empowers the court to make revocation and variation orders. Marriages / CPs cannot be revived. There would have to be exceptional circumstances for any such order to be made more than five years after the original declaration. A third party which had acquired an interest in the original property in good faith is protected (s 7). Furthermore an insurer would be entitled to repayment of any capital sum paid out if justified (s 8 (6)). S 14 therefore grants power to an insurer to require recipients of a capital sum following a declaration of presumed death to insure against the potential consequences of a variation order. Finally, a trustee would be bound to pay out to a successful variation claimant any undistributed property held pursuant to the trust. Trustees can in fact be required on the original declaration to take out an insurance policy in respect of any future claims for variation.
The Act requires the court to notify the Registrar General of any declaration made for entry into a new Register of Presumed Deaths (linked to the Register of Deaths). A certified copy of an entry in that Register is conclusive evidence of that person’s death.
In summary, this is a very useful piece of legislation that plugs gaps in existing legislation which have been causing heartache to many families for many years. Finally, the author litigated he was told was the first such claim in the Family Division of the High Court in January 2015, and he would be keen to compare notes with anyone who subsequently issues in the Chancery Division!
Do note that, most importantly, this Act binds the Crown but according to s 21, it cannot be used for a declaration in respect of Her Majesty!
N.B. A version of this article originally appeared in the Solicitors Journal on 3.2.2015