There are typically around 30 to 40 families in England and Wales every year who apply to have a family member declared dead if they’ve been missing for more than seven years. Many families apply in order to obtain a Grant of Probate, which will allow for the administration and distribution of the deceased’s estate to take place.
The Presumption of Death Act 2013 came into force in October 2014 and enables the High Court to make a ‘declaration of presumed death’ after it is satisfied, on the balance of probabilities, that a person who is missing, has in fact died; or at the very least, has not been known to be alive for a period of at least seven years.
Before the Act came into force, it was very difficult to obtain a death certificate without a body, which in turn caused a lot of anxiety for families seeking closure.
B P Collins’ lawyers Naadim Shamji, associate, and Rajiv Malhotra, senior associate, successfully achieved a High Court declaration of presumed death on behalf of their client Beryl Watson*. Mrs Watson was the widow of Ian Watson who disappeared in 2000 and was never seen nor heard of again.
Ian Watson was last seen in Spain in October 2000, where he had flown to view a villa that both he and his wife were interested in buying. Mr Watson’s disappearance led to an extensive police investigation involving Interpol, and the Spanish and Greater Manchester Police, but no evidence emerged as to his whereabouts.
Over 20 years after Ian went missing, the High Court officially declared Mr Watson dead in March this year, following his family’s successful application. The decision now allows Mr Watson’s estate to be administered according to law.
Naadim Shamji, associate in the private client team, advises on the process:
To apply for a declaration of presumed death, a claim form must be prepared including information about the claimant and their interest in the application (if not a spouse, civil partner, parent, child or sibling); details about the missing person and their disappearance; what action has been taken to trace the missing person; and details about their assets.
Relatives and other people who may be interested in the claim must be notified.
The application should also be advertised in at least one newspaper covering the area of the last known address of the missing person, in case there are others who may have further information about the missing person. People can dispute the application by detailing their interest and giving their reasons for becoming involved.
The more unusual or suspicious the circumstances of a person’s disappearance, the greater the need for expertise in the preparation of the legal paperwork. There is always a risk of losing the court fee if you do the application yourself, as it not widely appreciated the amount of evidence required, and not all evidence will hold the same weight.
Despite the change in the law bringing about the Presumption of Death Act 2013, there remains a lot of procedural red tape to follow in preparing the application and meeting timelines and sending out notifications, so there is a risk that these could be missed and hold up proceedings. It goes without saying that it can also be an emotional process, and it can help to have a lawyer supporting you through this.
*B P Collins has been given full permission to use this case study.