Only a small fraction of people who go missing remain so for many years. Yet those who are not found often leave behind family members that may eventually need, or want, to resolve their affairs, such as finances or property if they believe their loved one has died.
In England and Wales, you can apply to the court for a missing person to be declared presumed dead. This declaration will enable any property, money and other possessions of the missing person to be administered and will dissolve the missing person’s marriage or civil partnership. An application to the High Court (i) is made under the Presumption of Death Act 2013, which came into force on 1 October 2014.
Once someone has successfully received a Declaration of Presumed Death, they can then: Apply to the General Registry Office for a Certificate of Presumed Death; and Apply for probate.
The declaration automatically ends any marriage or civil partnership. A Certificate of Presumed Death can be used as evidence of death in the same way as a Death Certificate.
The declaration of presumed death is legal proof of the missing person’s status as being believed to have died, along with a date and time of the presumed death. The declaration will end any marriage or civil partnership. As mentioned above, it will enable the family to deal with any property, money or assets that the missing person had through the normal probate process.
The court can also deal with any questions around the missing person’s property, assets and money that those close to the missing person may have an interest in or acquire as a result of a declaration. In addition the court can decide that the value of an asset cannot be recovered following any later change in the declaration (for example, if it is found that the missing person is alive, or if the terms of the declaration are challenged).
The declaration becomes final once the appeal window that follows the declaration has closed, and subject to the outcome of any appeal made. An appeal may be brought within 21 days of the declaration unless the court has specified a different length of time when making the declaration. Note that one can apply for a variation order if a missing person returns (see below), but this will not necessarily lead to all of their belongings and affairs being returned to them.
A Declaration of Presumed Death will be granted if the court is satisfied either: that the missing person has died; or has not been known to be alive for at least seven years.
If there is clear evidence that the person has died, a Presumption of Death application can be made immediately. What matters is the strength of the evidence, not the period of time. In general, though, the shorter the period of time since the person has been missing, the stronger the evidence will have to be. Suicide notes would be seen as strong evidence.
If there is insufficient evidence the person has died, you will have to show that the person has not been known to be alive for at least seven years.
Presumptions of Death applications are dealt with by the High Court and they issue Declarations of Presumption of Death. Certificates of Presumed Death are then issued by the General Registry Office on application following a Declaration of Presumption of Death, which will allow the affairs of the person to be administered in the same way as a Death Certificate allows.
You can apply to the High Court if the missing person was domiciled in England or Wales, or was living in England or Wales for least one year before they went missing, or if you are the spouse or civil partner of the missing person and are domiciled in England or Wales, or have been living there for at least one year before making the application.
Whilst anyone can apply for a declaration of presumed death for a missing person, the court must refuse to hear an application if it considers that the applicant does not have ‘sufficient interest’ in the outcome of it, and if it is made by a person other than the missing person’s spouse, civil partner, parent, child or sibling.
It is generally better to contact mortgage companies to inform them about the missing person and your circumstances rather than ignore their letters. This can help avoid repossession proceedings. It is always a good idea to keep financial and legal institutions informed about any changes in the situation and ask them for clarification of the situation from their perspective.
It is recommended that you let the life insurance company of the missing person know about your application as soon as possible and that you update them on its progress.
You will probably need the help of a solicitor to prepare an application, along with the evidence needed to support the application. If possible, it might be helpful to try and find a solicitor who has experience of dealing with presumption of death, or similar applications and has the expertise to deal with your case. A barrister is not required for a Presumption of Death application.
When you ring a solicitor to discuss working on your case, it might be worth asking if they have worked on presumption of death cases before. If you would like help finding such a solicitor, the Law Society of England and Wales may be able to assist you.
You can also contact our helpline or policy team to be directed to solicitors we know have worked on such cases, although we cannot make specific recommendations.
As of October 2015, the application will cost approximately £680, not including solicitor’s fees, if you choose to employ one. Solicitor’s fees will vary from case to case. An average case can cost £5,000, but more complicated cases could cost a lot more.
The £680 is composed of a court fee of £480 and approximately £200 to advertise the application in the local newspaper, both of which are requirements for making the application.
If you wish to use a solicitor to help you compose the application and advise you on gathering the relevant evidence, it may be useful to discuss with the solicitor how much the application is likely to cost in advance of starting the process. You should get this in writing along with the basis on which you will be charged – hourly, etc. This should help you to understand the full cost of making an application.
Once one has acquired the presumption of death declaration, there will be other fees associated with gaining permission to administer the person’s affairs and distributing their assets. These can vary, depending on the complexity of the case.
Some solicitors will ask for payment upfront. Others may be willing to delay payment until after the case is complete and you have access to the assets in the estate. Alternatively, they may be willing to work on the case and be paid only if the application is successful (no-win-no-fee). If a solicitor acts on a no-win-no-fee basis they may charge you a ‘success fee’ in addition to their normal costs. Not all solicitors will offer these options and it is worth explaining your situation to a solicitor to see whether these options are available. For help finding an experienced solicitor, you can contact the Law Society of England and Wales, who may be able to assist you.
Are the assets of the missing person passed on straight after the Declaration of Presumed Death is made?
If the person’s assets total less than £5,000, banks and some other organisations might not require any further steps before they pass on the assets. In other cases, however, you must then apply for ‘probate’ before you can administer the missing person’s affairs and distribute any assets:
How long does the whole process take?
The process of acquiring the presumption of death declaration takes from four to six months. The length of each stage can vary. This doesn’t include the time required for gaining permission to administer the missing person’s affairs and distribute any assets.
What kind of evidence is needed to submit to the court and who provides this?
If you decide to make an application, you will need to gather evidence that demonstrates the likelihood that your missing relative has died.
If you are making the application then you will be responsible for providing the relevant evidence. The court will require sight of the missing person’s bank statements, in particular from the date of disappearance, so that they can investigate any suspicious transactions. It is therefore very important not to destroy bank statements. Hold onto any credit card bills that have been paid off by the family. Whilst it may be helpful to get legal advice as to what other kind of evidence is relevant in your circumstances, this will include evidence that either suggests they have died, or shows that they have not been known to be alive for at least seven years.
The following are some examples of the kinds of evidence that might be helpful in your application:
Will I know if an application for a declaration has been made regarding my missing relative by another person?
When an application for presumed death is made for a missing person, the applicant must notify the missing person’s spouse or civil partner and any parent, child or sibling they might have (or else the nearest relative, if there is no one from this list), and any ‘other person’ that might have an interest. Here, the ‘other person’ can include companies, such as insurers who may hold a missing person’s life insurance policy. This notification must be made within seven days of the application being issued by the Court.
In addition, within these seven days the applicant must also ensure that notice of the application is put in one or more newspapers which circulate in the area where the missing person was last known to live. You will have to provide a copy of the newspaper advertisement to the court at least five days before the hearing. The advertisement must set out the details of the claim. As such, if you are the close relative of a missing person, it is likely that you would be aware of any application being made to declare them as presumed dead.
If you are the spouse, civil partner, parent, child or sibling of the missing person, you have a right to intervene in proceedings. This will happen at the first hearing and will involve presenting evidence and your understanding of events. Other people may intervene also, but only with the court’s permission.
Will the next-of-kin have to go to court to give evidence?
If the claimant (applicant) does not have a solicitor, then attendance will be required. If the claimant has a solicitor, most judges will excuse attendance of the claimant. However, the judge might ask the claimant to attend, so it is best to get the solicitor to ask the judge whether this will be necessary. If the judge asks the claimant to attend then attendance is compulsory.
What’s it like, if I do go?
The hearing will involve the claimant (and their solicitor, if they have one) in the room with a district judge looking through the paperwork. They may ask some questions. The court will look at the evidence presented to it and will grant a declaration of presumed death if it is satisfied that the missing person is more likely than not to have died (i.e. on the balance of probabilities, which means 51% or more likely). If the application is opposed it will be listed for what’s called a ‘contested hearing’ and then it might be in front of a more senior judge, called a circuit judge at another hearing.
If the court grants a declaration, it will state the date and time of the presumed death. Where it is not certain when the missing person is likely to have died, the court will find that they died at the end of the period of time in which the missing person’s fate was uncertain (for example, if it is likely the person died between 1 March and 7 April 2005, the court would find they died on 7 April 2005). This is also the case if you are applying on the basis that the person has not been known to have been alive for a period of seven years, i.e. the court will find that the missing person died at the end of the seven year period. The date of presumed death may be relevant, for example, in the context of inheritances.
Once you have successfully received a Declaration of Presumed Death, you can then:
What happens if the declaration is factually or legally wrong?
When the court proceedings have finished, there are 21 days in which you can appeal the judgement (unless the court has specified a different time period). The objection can be on the grounds of a mistake in fact or law.
If the judge has already taken into account some facts or arguments by someone objecting to the case, it is very unlikely that an appeal would be made or be successful.
There may also be circumstances in which someone may wish to apply to vary or revoke the declaration of presumed death, for example if the missing person returns, alive, or if evidence comes to light which shows that the missing person was alive at a time later than that declared as the time of death in the original declaration. If so, an application can be made to the High Court for a ‘variation order’.
A variation order is a court order that may vary (that is, change) or cancel a declaration of presumed death following an application by any person it sees as having sufficient interest. A variation order will not reinstate any marriage or civil partnership, and does not itself affect the ownership of property obtained for value and in good faith as a result of the declaration. The court can, for example, order property to be transferred from a person who has inherited it under the will of the missing person, either back to the missing person (if found to be alive), or to another person who should have inherited it, but did not because the date on which the missing person was declared presumed dead was incorrect. However, where the property has been sold to a buyer, who has purchased it in good faith, the court order will not affect the buyer’s ownership of the property. A variation order will not affect income that has accrued from the date the missing person was declared presumed dead until the date of the variation order in relation to property acquired as a result of the declaration.
The court will not generally include any provisions relating to the property of a missing person in a variation order if the application for a variation order is made more than five years after the date on which the original declaration of presumed death was made, unless there are ‘exceptional circumstances.’
The court, when making the original declaration of presumed death, may order the trustee of a trust affected by a declaration to take out an insurance policy against the possibility of a variation order being made. Money held under the trust can be used to pay the insurance premiums.
Where an insurance company is to make a pay out as a result of a declaration (for example, under a life insurance policy), it can require the beneficiary to take out insurance against the possibility of a future variation order being made as a result of the missing person being found to be alive.
If an insurance company has paid out a capital sum as a result of a declaration of presumed death, and a variation order is sought, the court will follow the principle that the insurer is entitled to repayment of that capital sum (if justified by the facts which give rise to the variation order). This means there will be a presumption that the capital sum must be repaid, but that the court will have some flexibility in making that decision.
There is also an opportunity to appeal against the decision of the court to make a variation order. Appeals must be brought within 21 days of the decision (or within the period of time ordered by the court if that is different). As above, they must be on the grounds of a factual or legal mistake.
The police think my loved one took their own life, but I don’t want them to be declared dead. What can I do?
In the United Kingdom, the police cannot apply for a Declaration of Presumption of Death, only the family can. Also, note that there is no requirement on a family to apply for a Declaration of Presumed Death even if they think their loved one may have died.
Another relative of the missing person is instigating presumption of death proceedings, but I don’t want them to. What can I do?
If you are the spouse, civil partner, parent, child or sibling of the missing person, you have a right to intervene in proceedings. This will happen at the first hearing. Other people may intervene also, but only with the court’s permission.
If the proceedings have already finished, you can appeal the decision within 21-days (or longer if the judge specifies) of the decision date. Alternatively, you can apply for a variation order. See ‘What if my relative is found to be alive or there’s new evidence?’ above for more.
We understand that administering a missing relative’s affairs can be daunting and upsetting. Our support team is available around the clock if you would like to talk about how you are feeling throughout this process, or require practical advice on managing and resolving a loved one’s affairs.
There is a lot of information on this page, if you would like to download a copy as a PDF please click here.
Talk to us