Disappearing act

The Presumption of Death Act 2013 is giving families of missing persons some relief at a highly emotional and complex time, says Clare Archer

Lord Lucan's disappearance in the 1970s gave rise to decades of speculation. What happened before and after he vanished? Was he alive? If not, how did he die?

While few people disappear in such dramatic circumstances, the idea of 'doing a Reggie Perrin' or 'a John "Canoe Man" Darwin' is contained within the nation's collective psyche. Behind the more lurid newspaper headlines of those disappearances are stories about the families and friends left behind, with a string of unanswered questions, grief, uncertainty and often financial hardship as well as, until recently, a complex minefield of legal issues to deal with.

In England and Wales, control of someone's property or dealing with the personal affairs is not affected by their disappearance. The legal presumption is that without a death certificate, a person is assumed to be alive and, even when those left behind believe the missing person is dead, before the recent change in legislation, their ability to acquire a death certificate was limited or perhaps impossible.

There are many legal provisions under which a person may be presumed dead. But that presumption is limited to the specific legal procedure. Therefore, to dissolve a marriage/civil partnership with a missing person, you would have had to undertake a different legal procedure than when trying to get probate of a missing person's will and deal with the estate.

Those left behind may have had to get to grips with a range of different legal procedures to deal with a missing person's assets and personal affairs, some of which may have resulted in a death certificate being issued.

Untangling the web

The Presumption of Death Act, which came into force on 26 March 2013, is aimed at simplifying the complex web of procedures that apply to property and affairs. It provides a new process of applying to the High Court for a declaration that the missing person is deemed dead and getting their death certificate.

The legislation applies where the missing person is either thought to have died or where the person has not been known to be alive for at least seven years. The High Court will have jurisdiction to hear and determine an application under the Act only if the missing person, or the spouse/civil partner of the missing person, had adequate connections to England and Wales as set out in the Act.

While anyone may make an application to the court that a missing person is presumed dead, the court will not hear an application unless made by a close relative or someone who can prove that they have a sufficient interest in determining the application.

Date with death

Part of the declaration is a court finding the date and time of the missing person's death. This can be crucial because it can affect, say, entitlement under an estate or trust. If it is not known when a person died, there are special rules that apply to deem the death occurred by a particular date.

The declaration gives a missing person's family conclusive proof of death as well as the date and time. It is effective for all purposes including acquiring property and dissolving a marriage or civil partnership. Details of the death will be entered into a new Register of Presumed Deaths.

As expected, the legislation also provides for what should happen if further and different information is later ascertained about the date of death - or if the person, as in the case of John Darwin, is found alive.

While the court's new power is in its infancy, this legislation provides a much-needed mechanism for helping relatives of a missing person try to resolve the legal entanglements that the disappearance may cause.

Clare Archer is a partner at Penningtons

The firm writes a regular blog for Private Client Adviser