When a person has gone missing and is presumed dead, the Presumption of Death Act 2013 (“the Act”) allows certain eligible people to seek a declaration that the missing person has died. Such a declaration enables those people to deal with the missing person’s assets and liabilities which they would otherwise be unable to do.
In the recent case of Re Caroline Fisher [2023] EWHC 979 (Ch), the High Court has not only confirmed that the people eligible to seek such a declaration are the missing person’s spouse, civil partner, parent, child, sibling or some other person who has sufficient interest in the determination of the application, but has also clarified how to define someone who falls into the latter category.
Re Caroline Fisher [2023] EWHC 979 (Ch)
Caroline Fisher went missing in Cornwall in January 2022 . She was unmarried, her parents had died some years earlier, she was an only child, and her closest living relatives were two cousins. The year after her disappearance, a close friend (whom she had appointed as executor in her will) applied to the High Court for a declaration that Ms Fisher had died (with the knowledge and support of her cousins). What the Court had to consider was whether the claimant was a person who has ‘sufficient interest in the determination of the application’. As the Judge noted, the Act does not define ‘sufficient interest’ and neither is there any authority on which the Court could rely. Instead, the Judge reviewed other Acts that used a similar test, including the Senior Courts Act 1981.
The claimant’s reason for applying for a declaration was on account of her being named as executor in Ms Fisher’s will. Because there was no death certificate, there could be no grant of probate, so the claimant was unable to prove that she was entitled to administer Ms Fisher’s estate. The Judge, being satisfied that Ms Fisher had died, noted that granting a presumption declaration ‘cannot obtain any rights in relation to the missing person’s estate merely by obtaining the declaration. There must still be a successful probate application, in which the testamentary paper may be challenged if appropriate’.
For this reason, the Court considered that the claimant did have a sufficient interest in applying for a declaration of presumption of death notwithstanding that the will appointing the friend as executor had not yet been proved by the Probate Registry (and could turn out to be invalid, or to have been revoked by a later will). It is fair to add that every case of this type will turn on its own facts but, for future claimants relying on a claim of ‘sufficient interest’, the necessity to prove a will is a useful point of reference.
Our experience
These types of cases are, thankfully, fairly rare. However, we have recently successfully helped clients to obtain declarations under the Act, allowing them to start the process of obtaining Grants of Representation in relation to their husbands’ estates so that they could deal with their assets and liabilities.
We acted for the surviving spouses of two men who had gone missing after having been involved in a light aircraft accident over the English Channel. Tragically, it was not possible to locate the aircraft and there was strong evidence to suggest that the men had died during the accident.
Following the representations made on behalf of our clients, the Court issued declarations that both men were presumed to have died under the Act, allowing their surviving spouses to begin the probate process.
Should you require any assistance of this nature in relation to a missing person, please do not hesitate to contact a member of the team.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
