Missing, presumed dead!

Lord Lucan launches High Court bid to get his father declared dead!

This headline in the Daily Mail on 16Th October highlights the unusual, but not unknown situation where someone has disappeared, presumed dead and the family wishes to get them legally declared dead. 

The question of whether someone is dead is usually shown by the facts.  Where it does not, because, say, the person is missing, then it is for the person who is claiming that he is dead who must prove that fact.

There is a rebuttable presumption that if nothing has been from the person for 7 years by those who would have been likely to hear from him and all relevant enquiries have been made then he is dead. An application must be made to the High Court, strictly for the purposes for which the declaration is required, eg to claim under a life insurance policy. Unlike in Scotland, in England and Wales, you cannot get a presumption of death for all circumstances.

There are some specific circumstances cases where a presumption of death is allowed by statute, eg where a spouse/civil partner has been absent from the other party for at least 7 years and there is no reason to believe that they are alive then the other spouse/civil partner may apply for a dissolution of the marriage/civil partnership. In the case of probate, PR’s can apply to the Court for a Benjamin order allowing them to distribute the estate where the missing person would otherwise inherit,  as if the missing person has died, which frees them from liability, but not the other beneficiaries.

The charity Missing People provide support for families of missing persons. The Ministry of Justice has now announced that it intends to legislate for a presumption of death certificate.

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