When a loved one goes missing it is emotionally draining for their friends and family who are left wondering where they are and whether they are safe. As well as this, the situation can be practically draining, as you have to deal with matters that are left behind, such as paying a mortgage and bills. As time passes, and with no contact from the missing person, it might be appropriate to presume that they have died.
If your missing loved one has been gone for over 7 years, or if you have evidence to suggest that they have died, then it may be appropriate for you to apply to the Court for a Declaration of Presumption of Death.
If the Court grants your application, then it means that they are satisfied the missing person has indeed died and so all matters associated with the death of an individual can follow their usual course of action. This can mean payment of life insurance, pensions, and distribution of assets in accordance with the deceased’s Will.
► Learn more about our Missing Persons Law services here.
How Do I Apply for a Declaration of Presumption of Death?
Applications are made under the Presumption of Death Act 2013 and under the Act, anyone who has “sufficient interest” can apply. Although “sufficient interest” has not been defined, if you are the husband/wife, civil partner, child, sibling, or parent of the missing person, it is very likely that you would be able to apply.
You must give notice to certain people (e.g. family members who aren’t applying), and also in a public newspaper as part of the application, and it is possible that someone notified in this way might object. This is rare but can happen, so if you have any concerns that someone might challenge your application, let your solicitor know straight away and they will advise you about this.
To make an application it is wise to seek legal advice from a solicitor who has experience in dealing with missing person’s matters. They will guide you sympathetically through the process, ensuring that all of the relevant information that is needed is collected and appropriately presented to the Court.
What evidence do I need to apply for a Declaration of Presumption of Death?
You will need to provide the Court will as much information as possible about the missing person themselves, as well as the circumstances around them going missing.
Details of police reports, missing person posters, appeals in the news or on social media are essential to help the Court see that everything that can be done to try and find the person has already been done. If the person is believed to have died as a result of a specific natural disaster, a terrorist incident, or other disaster, then evidence of their presence at that place at the time of the event will also be required.
You will also need to provide details of their family, assets, any Power of Attorney or Guardianship Order that is in place (see our blog on Claudia’s Law here) and a copy of their Will if they have one.
This evidence can take some time to collect, so if you are planning to make an application using a solicitor, it makes sense to gather as much as you can before you instruct them to help you.
Using a solicitor with experience in dealing with missing people and the law surrounding missing persons will help greatly in making the process as swift and free of complications as possible.
The Declaration of Presumption of Death
Once the Court has considered your application, and all the supporting evidence, they will make a decision about whether it is appropriate to declare the missing person dead.
If they judge that it is appropriate, then they will issue a Declaration that the missing person is presumed to have died on a particular date. This date is usually either the day after the person was last known to be alive or the day that they are believed to have died if there is evidence to suggest a specific date applies.
What do I do next when I have the Declaration?
Obtaining this Declaration will allow you (or others) to obtain a Death Certificate and then to deal with your loved one’s estate in line with either their Will or the Intestacy Rules.
It will therefore allow you to sell any property or personal possessions of value, close bank accounts, liquidate investments and shares, and then distribute these in line with the relevant rules (those being the wishes as documented in the deceased’s Will or the Intestacy Rules).
It also allows their spouse or civil partner to re-marry or form a new civil partnership if they wish to do so.
Are you dealing with Probate after the death of a family member? Read our blog What is Probate and What Must You Do When Someone Dies? to learn what Probate is and what you as the executor must do.
In certain circumstances, if a person is missing, it may be appropriate for their loved ones to ask the Court to make an order stating that they are now presumed dead.
This means that although their body has not been found, the Court states that they are legally deceased and makes a “Declaration of Presumption of Death”.
The Court’s Order will confirm that the person is presumed to have died, and when they are presumed to have died – usually this will be the last day they were known to be alive, or the day after that.
Anyone can apply for a Declaration, but you must have “sufficient interest” in the missing person’s affairs.
If you are the husband/wife, civil partner, child, sibling or parent of the missing person, then you are likely to have sufficient interest to apply but this will depend on who else might have an interest.
If you do not fall into any of these categories, then you will need to prove that you do have “sufficient interest”. What the Court will consider “sufficient” will depend on all the circumstances but it is likely that if you are e.g. the person’s long-term partner or co-habitee you would be considered to have sufficient interest.
The rules about these applications are set out in the Presumption of Death Act 2013, but the most common circumstances where people seek a Declaration of Presumption of Death is when their loved one has either been missing for over 7 years or there is strong evidence to suggest the person has died.
The information and evidence you will need depends on the circumstances of the missing person and their family and finances.
The application will always need personal details of the missing person – name, date of birth, usual address etc. – but the Court will also expect to see evidence of them having been reported missing to the police and of the searches that have been done (by police and by others) to try and locate them.
If you have anything that strongly suggests they have died – such as a suicide note, diary entries, CCTV footage, evidence that they were last known to be alive at the site of a disaster – then you should also provide this as it will help the Court to determine whether they believe it is sufficiently likely that the person has died.
When someone has been declared legally deceased, then this allows several things to happen.
a) It ends any marriage or civil partnership, meaning that the deceased person’s spouse or civil partner can enter into a new marriage or civil partnership should they wish to do so;
b) It allows the person’s estate to be dealt with in line with their Will if they had one, or the Intestacy Rules if they did not;
c) It allows the person’s property to be sold (usually as part of dealing with the wider estate);
d) Perhaps most importantly, it often marks the beginning of the family and loved ones of the missing person to begin the grieving process.
If you need advice relating to a missing person or would like to commence the process of applying for a Declaration of Presumption of Death then call us. Our specialist team can discuss the specifics of your case and can advise accordingly as well as guide you through the process.
Call our Wakefield office on 01924 290 029 Call our Garforth office on 0113 246 4423 Call our Sherburn in Elmet office on 01977 350 500 Call our Mapplewell office on 01226 339 009 Call our Ossett office on 01924 586 466
About Melanie Pickering
Mel joined Thornton Jones Solicitors in November 2021 having worked in Law since 2004 occupying various positions from junior posts through to becoming a fully qualified solicitor.
In 2009 Mel completed her studies at law school and subsequently completed her training contract and in October 2017 qualified as a solicitor specialising in Private Client, Contentious Probate and Missing Persons Law. Mel admits that she “loves Law because it’s always changing and there’s always something new to learn”.
Outside of work, Mel lives with her husband and cat. She is a keen supporter of Cancer Research UK ‘Race for Life’ having taken part every year since 2010 and raising much needed funds in the process.
#MissingPersonsLaw #DeclarationOfPresumptionOfDeath #ContentiousProbate #PowersOfAttorney #LPA #MakeAWill #Solicitors #LeedsSolicitors #WakefieldSolicitors #YorkshireSolicitors #Garforth #Wakefield #SherburnInElmet #Ossett #Mapplewell #Leeds …
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
