Whether it is a single person that goes missing, or hundreds in a natural disaster like the 2004 South East Asia Tsunami, or the terrorist attack on New York City in 2011, the aftermath for relatives when the event is no longer front page news, is often overlooked by outsiders. What remains for those families affected by such an event is a minefield of legal issues which needs to be navigated before their lives can return to some form of normality.

In the UK (according to SOCA), around 900 missing person reports are filed daily equating to over 320,000 per year. Despite a large majority of the cases being solved within 48 hours, around 1% of those remain open after a period of 1 year. The emotional strain placed on family members and loved ones when a person goes missing is immeasurable, however the process can be made worse by the difficulties posed in dealing with their affairs during the time of uncertainty.

Currently in England and Wales there is no single source of law that deals with the many legal issues arising when a person goes missing, meaning that many simple tasks such as managing household bills or cancelling bank payments are not possible. Unlike when a person dies, a death certificate cannot be obtained by the family of a missing person as their body is not available to serve as evidence, and so the legal rights obtained with a grant of probate or letters of administration are not readily available.

Despite the Common Law presumption of death being available to administer the estate of a missing person, the presumption is a rebuttable one. Furthermore, the presumption only arises where:

  1. there is no evidence the missing person has been alive during a seven year period;
  2. people who would have been likely to have heard from the missing person have not heard from them during that period; and
  3. all reasonable inquiries have been made to find the missing person without success.

It is evident that waiting seven years is not always an option, and indeed in the case of some of the events referred to above, despite the absence of conclusive evidence the family may be completely satisfied in their own minds that death has occurred. In those circumstances, while there are other procedures in place to deal with specific issues such as dissolution of a marriage, obtaining a certificate of presumed death, and obtaining leave to swear a death order, the current position is unsatisfactory.

In an effort to reduce complexity, a Private Members’ Bill supported by the Missing People Charity was submitted in January 2009, to create a single procedure to obtain an ‘all purposes’ declaration for presumption of death. Despite the Bill being dropped initially, the campaign to introduce legislation covering this area has grown in recent years and was recognised by the House of Commons Justice Committee in its report published on 22 February 2012. The Committee recommended the introduction of a Presumption of Death Act, modelled on similar acts already in force in Scotland and Northern Ireland, to clarify the legal position.

The Presumption of Death Bill was at last introduced on 20 June 2012 and has had its first reading in the House of Lords on 3 December 2012. The Bill aims to introduce a new court procedure to enable the relatives of a missing person to obtain a declaration from the High Court that they are deemed to have died. When the declaration can no longer be the subject of an appeal, it will be sent to the Registrar General to enter the details onto a new Register of Presumed Deaths to serve as conclusive evidence as to the presumed death of the missing person. Certified copies of the entry can then be issued to enable others to deal with the affairs of the missing person in much the same way as if they had actually died.

The Bill, if enacted, will simplify the current complex procedures and will enable the affairs of a missing person, such as the passing of property or ending of a marriage / civil partnership, to occur in a straightforward manner. It is to be hoped that in some cases at least, it may also operate to cut short the very lengthy delay before a declaration can be made, and enable surviving family members to move on with their lives.Private