Missing, Presumed Dead?

Being alive has legal consequences. So too does death. When someone goes missing (in addition to the emotional trauma) a legal vacuum occurs. The law tries to offer a solution which balances the need for legal certainty against the possibility that a missing person will reappear.

Consequences

Deciding that a missing person has died, and the date on which that person is deemed to have died, may have significant consequences.

For example, during the time that person has been missing, another person may have died having left the missing person a legacy. The determination of the date of the missing person's death will decide whether or not the missing person's estate takes the benefit of that legacy. There are other complications, such as whether pension payments have to be repaid and so forth.

The Law

Parliament has tried to resolve the legal tensions surrounding the status of missing persons most recently with the Presumption of Death Act 2013. The Act provides (Section 2) that:

(1) '...the court must make the declaration [that the missing person has died] if it is satisfied that the missing person -

(a) has died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) It must include in the declaration a finding as to the date and time of the missing person's death;

(3) Where the court -

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.

(4) Where the court -

(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b) is not satisfied that the missing person has died,

the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day on which he or she was last known to be alive.'

If the Court is satisfied that the missing person has died, it should also decide when that person died.

If the Court is satisfied that the missing person has died but is uncertain when, the missing person is presumed to have died at the point at which, on the balance of probabilities, such uncertainty disappeared.

In some cases the Court may be able to determine a limited window within which the death must have occurred; if so, the presumed date of death will be the final date in this window.

In many cases, however, no such window will be discernible; each...