In November last year, the National Crime Agency reported that someone is recorded as missing in the UK every two minutes. Its findings were based on research released by the National Crime Agency’s UK Missing Persons Bureau, which analysed statistics for the year 2012–2013.
This means that, on average, police forces in the UK are dealing with some 838 missing person reports every day. Although the vast majority of those reported missing are found safe and well, a small number (in the region of 3%) remain unfound.
Not knowing what has happened to a loved one is a distressing and traumatic experience. It also poses practical difficulties for those left behind in dealing with the missing person’s financial affairs.
Difficult questions may need to be addressed such as when a life insurance policy should be paid out and when a missing person’s marriage is deemed to have ended.
Previously the law in this respect was complex and piecemeal. However, the law has recently changed. The Presumption of Death Act 2013 (the “Act”) came into force on 1 October 2014 and seeks to assist families by creating a clear and simple process so they can deal practically with cases of missing loved ones who are sadly presumed to be dead.
A successful claim under the Act grants the applicant a declaration as to the legal status of the missing person, which then allows them to manage that person’s financial affairs.
When does the Act apply?
The Act applies where a missing person:
- Is thought to have died; or
- Has not been known to be alive for a period of at least seven years.
In these scenarios any person can apply to the High Court for a declaration that the missing person is presumed dead.
What are the requirements if an application is to succeed?
- Any person can make the application;
- The missing person must have treated England and Wales as their permanent home (or have lived and had a substantial connection there) on the day they were last known to be alive;
- The missing person must have been habitually resident in England and Wales throughout the period of one year ending with the day on which they were last known to be alive;
- If the application is made by the missing person’s spouse or civil partner it is sufficient if the applicant regards England and Wales as their permanent home on the day the application is made or the applicant has been habitually resident in England and Wales throughout the period of one year ending with the day of the application;
- The Court is unable to hear an application made by someone who is not a close family member unless the Court is of the view that the applicant has a sufficient interest in the outcome of the proceedings.
What is the outcome of a successful application?
If the Court is satisfied that the missing person is dead or has not been known to be alive for a period of at least seven years it must make a declaration. The declaration must set out the date and time of the missing person’s presumed death.
What is the effect of a declaration of presumption of death?
- It concludes the date and time of the missing person’s presumed death;
- It is effective for all purposes e.g. the ending of a marriage or the acquisition of an interest in property;
- The Registrar General must maintain a Register of Presumed Deaths and the declaration will be recorded there.
A step forward
The Act simplifies (for the missing person’s family or other interested party) the process of obtaining a declaration of presumed death. It allows one declaration to be obtained for all purposes and means that important practical arrangements in relation to the missing person’s affairs can be made.
The Act is a certainly a good start, but there are still issues that it does not resolve. For example, in the seven-year period before an application can be made it would help if the Act implemented some form of guardianship scheme allowing a missing person’s affairs to be managed (with supervision) until such time as a declaration can be applied for and granted. It is hoped that the legislation will be further developed in this area in the not too distant future.
Copyright © 2015 Anna Sutcliffe, a specialist inheritance solicitor with Wright Hassall.