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Relatives of missing persons offered a lifeline

View profile for Bill Pollinger
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When a loved one goes missing our first thoughts are of finding them safe and well and returning them home.  Over time, if they are not found, while that feeling never leaves, other concerns come to the front, such as financial and legal responsibilities.  The Presumption of Death Act came into force on 1st October 2014, and here Bill Pollinger, explains how the new procedure will help those find some closure.

“According to the charity Missing People, 250,000 people are reported missing each year,” begins Bill.  “While some will be found, there are those unfortunate situations where the person never returns.  In the time that follows, the relatives move to the conclusion that their loved one is ‘missing, presumed dead’ and so need to begin proceedings of making financial and legal arrangements.  Up until the introduction of the Presumption of Death Act, which is the result of years of campaigning by Missing People, these people were met with a confusing process.”

The main reason for this difficult process was the lack of proof of death.  “In order to begin the normal legal proceedings, a death certificate is needed to register the person’s death,” explains Bill.  “Without this, preparations can’t be made, not just with regards to probate but also to do with marriage, bank accounts, mortgage payments, property ownership and so on.  With a missing relative a death certificate was not possible to obtain, and so family members had to pursue a different legal path and make an application to the Probate Court for a ‘leave to swear death order’ under the Non-Contentious Probate Rules 1987.

“Once the order was granted it then enabled the relative to obtain a Grant of Probate to deal with the financial affairs,” continues Bill.  “However, if the relative wished to have the marriage or civil partnership dissolved then a separate application had to be made to the High Court for a ‘decree of presumed death and dissolution of marriage or civil partnership’.  Both applications to the Courts were time consuming and expensive.”

The new Presumption of Death Act has now transformed this system.  Bill explains, “This new process means that relatives can now make one application for a single declaration from the High Court declaring someone presumed dead.  The High Court will then declare whether it is satisfied that the missing person has either died or has not been known to be alive for the past seven years.  This declaration will then grant the same rights as the presentation of a death certificate to enable probate to be obtained and will also dissolve the marriage or civil partnership.  The declaration will then be registered with the Registrar General on a new register of presumed deaths and a copy of the register can be obtained for £9.25.

“Discussions of this sort are always sensitive and something that no-one should have to experience.  It’s reassuring to know however that there is now support for those who need it, and their voices have been heard,” Bill concludes.  “We are still waiting to hear on the Government’s plans to reform guardianship rules for missing persons as this would enable relatives to manage and maintain the missing person’s affairs in case of a return.”

For more information on the Presumption of Death Act or to put your affairs in order, you can contact Bill or a member of the Private Client Team on 01329 222075 or you can visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.