The Presumption of Death Act came into force on 1 October 2014. The law had previously been described as “piecemeal”, with no single piece of legislation governing the processes that family members of missing persons, particularly those missing for several years, needed to pursue. This was a very complicated, difficult and expensive process for anyone with a possible family bereavement of this nature to follow.
The new Act has attempted to simplify this process and to bring England and Wales in line with the legislation already in effect in Northern Ireland and Scotland. The Act enables an application to be made to the High Court for a declaration that a missing person, who is thought to have died or who has not been known to be alive for at least seven years, is presumed dead. Once it can no longer be the subject of an appeal, the declaration will be conclusive as to the presumed death and effective for all purposes and against all persons.
What happens then?
The missing person’s property will pass to others as if the missing person has died and been certified dead. His or her marriage or civil partnership will end. Previously, people left behind by a missing person had to use various procedures to deal with different aspects of the missing person’s property and affairs.
If the applicant is not a family member such as the spouse, civil partner, parent, child or sibling of the missing person, the court must refuse to hear the application unless it considers that the applicant has a sufficient interest in the determination of the application.
Once it can no longer be the subject of an appeal, such a declaration is conclusive of the missing person’s presumed death and it includes the date and time of that death (which might have relevance for other matters such as property interests). The death will be recorded in a new Register of Presumed Deaths, which will be linked for search purposes to the Registers of Death for England and Wales. The declaration is effective for all purposes, including the ending of the missing person’s marriage and dealing with property
Streamlining the process
By these sections alone, the new Act simplifies and streamlines the process for the family of a missing person or other interested parties, allowing one application to be effective for all purposes, instead of the previous rules that required declarations for each specific purpose. The Act also resolves potential questions surrounding time-sensitive assets of the missing person, such as insurance policies.
In the event that an individual, who is declared presumed dead under the new Act, reappears at a later date, the declaration may be varied or revoked by application to the High Court. It is worth noting, however, that in the 34 years of the Scottish legislation which is similar to that introduced in England and Wales this year, only one person declared presumed dead has since reappeared. The Ministry of Justice estimates that around 30-40 applications for a presumption of death certificate will be made each year.
Stepping stone to further legislation
Although it appears that the new Act will go a considerable way towards clarifying the law and assisting families for whom such declarations are required, there has been some criticism that the Act does not go far enough, particular by failing to adopt ‘guardianship’ provisions to manage the affairs of people missing within that seven-year period. However, it has been made clear that this Act is the first stepping stone to further legislation in this area.
The consultation of Guardianship of the Property and Affairs of Missing Persons ended on 18 November 2014. The consultation asks whether there ought to be a new legal mechanism by which a guardian could be appointed to act on behalf and in the best interests of a person who has gone missing, and what the process and terms of such an appointment should be.