Certificates of Presumed Death

The Ministry of Justice’s recent response to a Justice Select Committee report announced that it would agree to the recommendation to introduce certificates of presumed death for missing people in England and Wales. The ministry accepted the committee’s principal recommendation to bring forward legislation to create a single statutory process for obtaining a certificate of presumed death broadly equivalent to a death certificate.

The Current Position

Once an individual dies, the issue of a death certificate ensures that the executors of the will (or, in the absence of a will, the next-of-kin) are able to obtain a grant of representation to enable them to deal with the deceased’s financial affairs. But when a person goes missing instead, the absence of a death certificate results in their financial affairs being held in limbo with inaccessible bank accounts, direct debits, ambiguous marital statuses and challenged mortgages.

People faced with resolving the affairs of missing individuals have to cope with a mix of statutory and common law provisions which currently offer no clear guidance. The situation does not improve in the longer term if the missing person is not found. For example, families may be unable to rely on life insurance policies that would normally pay off mortgages.

Announcement

The Ministry has said that the presumption-of-death certificate would be equivalent to a death certificate in its legal power, and would allow families to deal with all of the legal and financial issues that need to be resolved when a person is missing and presumed dead.

The Committee heard evidence that long-term missing people cases are relatively rare and approximately 200,000 people are reported missing every year of which 99 per cent are found within a year.

Currently, there is no single procedure allowing a court to make a declaration of the presumption of death. Further steps will need to be taken if the Ministry of Justice is to remove many of the more burdensome obstacles faced. Under the report’s recommendations, families would be able to apply for a presumption-of-death order seven years after someone went missing. The report proposed that legislation should also be introduced to create a new status of guardian of the affairs of a missing person four years before this, which would assist in the management of their affairs.

 

Robin Gambles

Published on 09/11/2012

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