The Presumption of Death Act 2013 came into full force in October 2014. Laura Abbott of Wright Hassall summarises ‘the Act’ and explains the application procedure for a missing person presumed to be dead.

The Presumption of Death Act 2013 in summary

The Presumption of Death Act 2013 (‘The Act’) came into force on 1 October 2014 and provides a simple route for the High Court to make a declaration of presumed death, specifically set out in the Civil Procedure Rules Practice Direction 57B.

Under S1 of the Act, the court has to be satisfied, on the balance of probabilities, that a person who is missing:

a.            Is thought to have died; or

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

Once the declaration is obtained, it can be used for all purposes. Typically, however, it is used to obtain a Grant of Probate to allow for the administration and distribution of a person’s estate. Its purposes also include the dissolution of marriages.

Background - Lord Lucan and presumption of death

Probably the most famous case involving a missing person is that of Lord Lucan who, despite disappearing in the 1960s, was only presumed dead in 2016 when his son was able to seek a declaration to that effect under the Presumption of Death Act 2013. Before the enactment of this law, it was difficult, if not impossible, to obtain a death certificate without a body.

Given that there are roughly 30 to 40 cases a year where families seek to obtain a declaration that someone who disappeared years ago is presumed dead, the introduction of the Act was long overdue and most welcome for those families finding themselves in such a distressing situation.

Who can you apply for a declaration of presumed death?

Anybody can apply to the High Court for a declaration that a missing person is presumed to be dead. However, the person applying must be the missing person’s spouse, civil partner, parent, child or sibling, or otherwise have a sufficient interest in the determination of the application. 

The High Court has jurisdiction to hear and determine an application under the Act only if the missing person was domiciled in England and Wales at the time of their disappearance and the missing person had been habitually resident throughout the period of at least one year ending with their disappearance.

Under S2 the High Court must make the declaration if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years, on the balance of probabilities.

CPR 57.18 requires that a claim should be brought in either the Chancery Division or in the Family Division of the High Court.

What information do I need to apply for a declaration of presumed death?

The claim form must include, or be accompanied by, information about:

• The claimant (name and address, relationship to the missing person and interest in the application (if not a spouse, civil partner, parent, child or sibling));
• The missing person (their name, previous or alternative names, occupation, usual or last known address, date and place of birth, gender, marital status);
• The missing person’s disappearance (the date on which missing person is thought to have died, or on which the missing person was last known have been alive);
• The steps taken to trace the missing person; and
• The missing person’s property (i.e. an estimate of the total value of their assets).

The claim must be served on relatives and other persons interested in the claim, and also advertised in at least one newspaper circulating in the vicinity of the last known address of the missing person, in case there are unknown others. 

Interested persons can oppose the application by filing a notice of intervention detailing their interest and their reasons for intervening. 

Whether or not there is an intervention, the application will be listed for a directions hearing (more than 28 days but less than 56 days after issue, to allow time for those given notice of the claim or responding to the advertisement of the claim to file notice of intervention). 

If nobody opposes the application and the judge does not require any further information then this could be the final hearing, or the judge could give directions for next steps to be taken before a further hearing at which a final decision will be made.

How a date and time of death is decided

If, and when the court provides the declaration the court will order the date and time of death. If the court is satisfied that the missing person died on the date they disappeared, that will be the date of death.

However, if the court is satisfied that the missing person has died but the date of death is uncertain, then the court will order the date to be the final day of the period in which the missing person is believed to have died.

If the court is not satisfied that the missing person has died but is satisfied they have not been known to be alive for a period of at least 7 years, then the date of death will be 7 years starting from the day after the date the missing person was last known to be alive.

What happens when a court grants a Presumption of Death?

If the court grants the declaration, they will notify the Registrar General of England and Wales, who will then enter the details into the Register of Presumed Deaths, and a Certificate of Presumed Death is issued.  A certified copy of the declaration of presumed death is required to apply for a grant of representation.

If it later becomes clear that the declaration is incorrect – e.g. the missing person returns – an application can be made to the High Court for an order to vary or revoke the declaration. Sometimes it is prudent for executors to take out insurance to cover against the possibility. 

The Presumption of Death Act 2013 in action

The court made such a declaration in Greathead v Greathead [2017] EWHC 1154 (Ch), where the missing person had suffered a history of depression which had included five failed suicide attempts, and he had not been seen for 11 years.

This case also provides useful clarification for practitioners on the procedure for obtaining the declaration, the factors the court will consider, and the level of evidence required to obtain a declaration.

The Guardianship (Missing Persons) Act 2017

The Presumption of Death Act, whilst useful, is often criticised because of the seven-year period needed before an application can be made. Ie it still leaves families in a state of limbo as they are unable to deal with a missing person’s affairs in the meantime. A power of attorney, if one exists, can no longer be used as it should only be used if a person is known to be alive. So, if a person disappears, nobody has the legal authority to protect or manage their affairs while they are missing.

As such the Guardianship (Missing Persons) Act 2017 has been introduced and came into force on 9 August 2019. Under the new act, one or more applicants can apply to the court for a ‘Guardianship Order’ to manage the property and financial affairs of the missing person after they have been confirmed missing for more than 90 days.

Now this further act is in force, both pieces of legislation should provide a comprehensive statutory framework to allow for management of a missing person’s affairs in the short term, with the declaration to allow for their estate to be finalised thereafter. 

About the author

Laura Abbott is an associate in the contentious probate team at Wright Hassall, and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

Bereaved families to receive faster funeral payments

Is there an intestacy? How to tell if a will is fraudulent

Find out more

Presumption of Death Act 2013 (Legislation)

Greathead v Greathead [2017] EWHC 1154 (Ch) (BAILII)

Guardianship (Missing Persons) Act 2017(Legislation)

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