Calculating a presumed date of death
A recent case has cast a light on a rather specific aspect of the Presumption of Death Act 2013.
When a person is missing and presumed to be dead, but there is no body, the Presumption of Death Act 2013 applies. The Act, which was prompted by the case of Lord Lucan, states that 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. Such an application can then enable surviving family to administer and deal with the missing person’s affairs and estate.
In the latest case to come before the courts AB and his wife, CD, lived together in north east England. When CD retired from working as a midwife in the NHS, the couple then lived and worked in a number of countries, before returning to England.
In May 2009, AB and CD traveled to Yemen to work with an NGO providing healthcare services. On 12 June 2009, AB was taken hostage by unknown persons. There is limited information or detail about what happened after AB was abducted, but based on information obtained by the Foreign & Commonwealth Office (“FCO”), it was believed that he had died, though his body was never found.
A rather unusual aspect of this case is that, while the FCO clearly had a number of sources of information to go on, very little information nor the actual sources of this information could actually be disclosed to the court for national security reasons.
The particular legal point that arose from the case starts with the provisions of Section 2 of the Act and the requirement, when making a declaration about the presumed date of death, to include a date and time of death. That Section states as follows:
“(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”.
The Court observed that if they were satisfied that the missing person had died and the date of death was clear, then it would not be difficult to fix a date and time of death.
Similarly, where the Court is satisfied that the missing person has not been known to be alive for at least 7 years, and is not satisfied that the missing person has died, then there is a clear process to be followed in determining the date and time of death.
However, the problem arises where the Court is satisfied that the missing person has died but is uncertain at what point that happened. In such circumstances, Section 2(3) would apply, but could lead to an anomalous result. This could present some real and practical difficulties because, if the missing person was in receipt of pension or benefits payments, a substantial sum may have been received during the period they were missing and their Estate may then face a claim for repayment.
The way that Section 2(3) is worded is that the Court is “uncertain at which moment during a period the missing person died”, but there is no assistance given as to how the “period” is to be established.
Accordingly, the Court is required to decide upon a “period”, but may have nothing to really go on other than that it is open for them to fix the end of the “period” at their discretion. Furthermore, it was considered entirely possible for the “period” to be longer than the 7 years referenced in the Act.
In this particular matter, the Court made the requisite declaration sought, setting the date and time of death as being that of the Hearing of the Application.
This appears to be a very appropriate and sympathetic approach to take to calculating the presumed date of death, avoiding any potential claims for repayment of monies received during the period in which the person in question was missing, whilst also resolving a potential difficulty in the wording of the Act itself.
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 or your require expert guidance on calculating the presumed date of death, then please contact our Contentious Probate team on 0333 888 0404 or email us at [email protected]
