Presumption of death - when can you apply?

What are the provisions of the Act?

Section 1 of the Act provides as follows:

Applying for declaration

1. This section applies where 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.

2. Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

3. The court has jurisdiction to hear and determine an application under this section only if:

(a)  The missing person was domiciled in England and Wales on the day on which he or she was last known to be alive;

(b)  The missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day; or

(c)  Subsection (4) is satisfied.

4. This subsection is satisfied if the application is made by the spouse or civil partner of the missing person and:

(a)  The applicant is domiciled in England and Wales on the day on which the application is made; or

(b)  The applicant has been habitually resident in England and Wales throughout the period of 1 year ending with that day.

5. The court must refuse to hear an application under this section if:

(a)  The application is made by someone other than the missing person’s spouse, civil partner, parent, child or sibling; and

(b)  The court considers that the applicant does not have a sufficient interest in the determination of the application.

 

Section 2 of the Act provides:

Making declaration

1. On an application under section 1, the court must make the declaration if it is satisfied that the missing person:

(a)  Has died; or

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

2. It must include in the declaration a finding as to the date and time of the missing person’s death.

3. Where the court:

(a)  Is satisfied that the missing person has died, but

(b)  Is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.

4. Where the court:

(a)  Is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b)  Is not satisfied that the missing person has died, the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.

How does the Act work in practice?

In November 2021 the court heard an application from D who acted as a litigation friend for her son, C in a claim that his father, P was presumed to be dead.

D and P were partners who cohabited and had a child, C together but they had never married or entered into a civil partnership.  D and P had met in 2008 through a mutual friend and began living together.  C was born in March 2010.  At the time P was living and working in Spain but D spent most of her time living in England.

In April 2011 P decided that he wanted to return to work as cabin crew but before doing so he wanted to travel and so he flew to South America with his friend, G for a holiday.  They travelled to Peru, Columbia and Ecuador.  P kept in regular contact with D until, when he was in Lima, Peru, his communications abruptly ceased.  His last known communication was a text to D on 16 May 2011.  G’s communications with his loved ones also ceased.  Neither man has been seen or heard of by family or friends since then and notwithstanding many enquiries and attempts to trace him, there is no information at all as to what happened to P on or after 16 May 2011.

The court had before it statements from D, P’s mother, his aunt and his friend, F setting out how D and others had sought assistance from the police, the Foreign, Commonwealth and Development Office and the Peruvian authorities.  The evidence went on to confirm that posters had been displayed in Lima, social media posts have been issued and disclosure orders made against various bodies including the NHS, the DWP and the Salvation Army, all to no avail.  The statements also confirmed that there had been no activity on P’s bank or mobile phone accounts.  D’s statement also provided evidence that G remains missing.

In accordance with the court’s directions D had placed an advertisement in the Berkhamstead and Tring Gazette giving notice of the application.  No response had been received to that advert.

Consideration of the application

D brought the application for two reasons.  Firstly, P’s grandmother had recently died and left P a small bequest.  Very sadly, secondly, P’s father had also died shortly after he went missing and P’s mother asked D to make the application.

D noted the provisions of section 1(5).    Under the Act a long-term cohabitee is not automatically deemed to have sufficient interest to bring a claim nor is “sufficient interest” defined. D was anxious to avoid refusal of the application on the grounds that she did not have sufficient interest in the determination of the application and so she brought the application in her son’s name acting as his litigation friend.

The court was satisfied that the evidence established that P was domiciled in England and Wales on the day he was last known to be alive and that he had been habitually resident in this jurisdiction for over a year before that date.

As to whether P had died or had not been known to be alive for a period of at least 7 years, the court determined that it was arguable that the evidence proved P had died given that there was a sudden cessation of communication which had now persisted for over ten years in the context of a man who had a partner and a young child, and family, to whom he was close.  However, as the court had no evidence of the surrounding circumstances in Lima at the time communications ceased, the judge was not satisfied that the evidence established P had died.  The court was, however, satisfied that P was missing and had not been known to be alive for over 7 years.

Judgment

In the circumstances, pursuant to Section 2(4) of the Act the court made a finding that P was presumed to have died at the end of the period of 7 years beginning with the day after the day on which he was last known to be alive, i.e. 16 May 2011.  The court therefore declared that P was presumed to have died at midnight on 16 May 2018

The court also directed that the order be sent to the Register General so that an entry could be made in the Register of Presumed Deaths with the Register ensuring that the entry be included in the index of the register of deaths.

The judge also directed that the fact the Act did not automatically deem a long-term cohabitee to bring a claim be brought to the Register General’s attention.  Bearing in mind that a long-term cohabitee could be as close as anyone to the missing person, the judge stated that he considered it very unfortunate that D had had to use her own son in order to ensure the application would be determined.  It remains to be seen therefore whether there will be any amendment to Section 1(5) of the Act in the foreseeable future to reflect what might be considered more modern relationship statuses.​​​​