If a person is missing and presumed to be dead but there is no body, then several difficulties can arise.

Largely, these relate to what happens with that person’s assets and affairs. Normal probate or estate administration procedures cannot be followed without the production of a death certificate.

What is the Presumption of Death Act 2013?

To try and address these issues, a new piece of legislation was passed. This is called the Presumption of Death Act 2013.

When it was introduced, the Act was very much welcomed. It addressed an important, albeit rare, issue that could be extremely problematic.

The Act allows certain people to make an application to court for an order that essentially has the same effect as a death certificate. In this way, it then allows for the missing person’s estate to be dealt with and administered.

When can an application be made to the court for a declaration of presumed death?

Where a person is thought to have died or has been missing for a period of at least seven years, an application can be made for a declaration that they are presumed to be dead.

If such a declaration is made, the normal probate and estate administration procedures can then be followed.

Another piece of legislation has also been passed, called the Guardianship (Missing Persons) Act 2017. In essence, this allows an order to be sought if a person has been missing for at least ninety days, allowing their estate to be dealt with. That order can be renewed for a period of up to four years.

If the person remains missing for the full period of at least seven years, then a further application can be made for a declaration that they are presumed to be dead, thereby allowing the estate to be distributed.

Who is allowed to deal with the estate of a missing person who is presumed to be dead?

The application can be made by anyone.

However, ordinarily, such an application would be made by the missing person’s spouse, civil partner, parent, child, or sibling. Alternatively, only someone who had an interest in the missing person’s estate would be able to make the application, such as the executor of a will, or a beneficiary under the rules of intestacy.

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

The sort of evidence needed to satisfy the court to the extent that they would be willing to make the declaration will vary from case to case.

However, it will likely include:

1. witness statements from relevant persons, explaining the circumstances in which the person went missing, and
2. evidence of the steps taken to try and locate or find the missing person, including notices in the media, tracing agents, involving the local police, contacting the banks regarding activity on the person’s accounts, etc.

What if the person or more evidence is found?

If the person in question were to be found, then the application would naturally come to an end. However, there may then be an issue as to who is to bear the costs incurred to that point.

Otherwise, if the court is not satisfied sufficiently to make a declaration, there does not seem any reason why they would not be willing to make an alternative order under the Guardianship (Missing Persons) Act 2017 for a specified period of time.

Then, if the person remains missing or further evidence is obtained, another application can later be made for a declaration of death.

Alternatively, if a declaration has already been made, a variation can be sought at a later point. For example, if more evidence is obtained as to the date of death, then it can be amended to reflect that.

Presumption of Death Act case: Re P (2021) EWHC 3099 Fam

A recent case has seen the court make a declaration pursuant to the Presumption of Death Act 2013.

The background

P cohabited with a partner (“D”) and they had a child together, C, who was born in 2010. P was a devoted father and whilst he spent most of his time in England with D and C, he also travelled to work on a restaurant project in Barcelona. He had a background in working as cabin crew with a major airline.

In 2011, P decided to return to working as cabin crew. In April 2011, he flew to South America with a friend for a holiday. They travelled to Peru, Columbia and Ecuador. Then, contact with D abruptly ceased. The last known communication was a text sent on 16 May 2011. Neither P nor the friend he went with have been seen or heard of since.

Numerous enquiries were made and attempts to trace P, all to no avail. Further, there has been no activity on P’s bank or mobile phone accounts. His friend also remains missing.

Sadly, P’s father died shortly after he went missing. More recently, P’s grandmother passed away, leaving a small bequest to him.

The court’s decision

The purpose of the application being made for an order was so that C could inherit the bequest left to P by his grandmother.

Whilst the court accepted that P was undoubtedly missing, it had some reservations about making the order sought. This was because a finding that a person has died under the Act should only be made on clear evidence of their death. However, the evidence produced didn’t establish that P had died, just that he was missing and not known to be alive.

Accordingly, the court relied on Section 2(4) of the Act. This permits an order to be made where the missing person hasn’t been known to be alive for a period of at least seven years. This was instead of Section 2(3) of the Act, which requires the court to be satisfied of death.

We can help you

If you are involved in or dealing with the affairs or estate of a person who has been missing for an extended period of time, talk to us. Our Contested Wills, Trusts and Estates Team is here for you on 01823 625841.

We handle a variety of disputes and issues surrounding the estate administration process, including applications relating to missing persons. Further, we can offer high quality, cost-effective legal advice on such matters.