Insights
24 Jan 24
What is a caveat on a will?
David McGuire and Matthew Morton
Where the court is satisfied that the missing person has died on a specific date, the date of presumed death is that date.
Situations can arise when a person has been ‘missing’ some time, leaving their loved ones to face the unwelcome issue of how the missing person’s affairs are to be dealt with.
That prospect, though entwined with an undoubted reluctance to accept the death of the missing person, thankfully does come with some helpful guidance from a legal perspective in the form of the Presumption of Death Act 2013 (“the Act”).
The Act came into force on 1 October 2014 and it enables certain parties to ask the court to declare that a missing person is presumed to have died.
Who can be ‘presumed dead’ and who can request that presumption?
Given the circumstances and the nature of such a request, there is a strict set of defined criteria to satisfy before the court can determine such a request:
- the missing person must have been domiciled in England and Wales on the day on which he or she was last known to be alive; or
- the missing person had been habitually resident in England and Wales throughout the period of one year ending with that day; or
- if the request is made by the spouse or civil partner of the missing person and:
- the spouse/civil partner is domiciled in England and Wales on the day on which the application is made; or
- if the spouse/civil partner has been habitually resident in England and Wales throughout the period of one year ending with that day.
If someone other than the spouse/civil partner is making the request, the request will only be heard by the Court if it is brought under 1 or 2 above.
If the person making the request is not the person's spouse, civil partner, parent, child or sibling, and if the court considers that the person does not have a sufficient interest in the determination of the request, the court will not hear the request.
In respect of former spouses, if no provision was made as part of their divorce before the other party to the marriage or civil partnership went missing, the former spouse of the missing person might have a sufficient interest.
What declaration will the court make?
On the assumption that the above criteria are met, the court must make a declaration of presumed death if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years.
Uncertainty over the date that the person died
Where the court is satisfied that the missing person has died on a specific date, the date of presumed death is that date.
For example, if the court finds that Joe Bloggs died on 10 June 2014, that is the date of presumed death.
However, where the court is satisfied that a missing person has died but is uncertain at which moment during a period the missing person died, a declaration will be made that the missing person is presumed to have died at the end of that period.
For example, if the court finds that Joe Bloggs must have died between 10 June 2014 and 20 June 2014, the date of presumed death is 20 June 2014.
What happens if the court cannot be satisfied the missing person has actually died?
Where the court is satisfied that the missing person has not been known to be alive for a period of at least seven years but is not satisfied that the missing person has died, a declaration will be made that the missing person is presumed to have died at the end of the period of seven years beginning with the day after the day on which they were last known to be alive.
For example, if the court is not satisfied that Joe Bloggs has died but is satisfied that Joe has not been known to be alive since 10 June 2005, the date of presumed death is 10 June 2012.
What evidence will the court look at?
The pertinent evidence the court will take into account will vary significantly on the facts of each particular case. For example, there may be witnesses who last saw a person, or perhaps their belongings, in a place where the natural conclusion to make is that a person has died (for example, a cliff edge). The missing person may have left evidence pointing to them having taken their own life, such as a suicide note.
What is the effect of a declaration?
A declaration under the Act is conclusive of the missing person's presumed death and the date and time of death. It can, however, be varied or revoked by a court order on the application of a person with sufficient interest in the determination of the application. The court can also determine and make an order in relation to the missing person’s property.
How do I make an application for presumed death?
There are detailed rules contained within the Civil Procedure Rules as to the content of a claim form, providing notice of the claim to others who would be entitled themselves to be the claimant, for advertisement of the claim and for intervening in a claim. Typically, a claimant will be expected to provide as much detail as possible in respect of the missing person, the date of their disappearance, what steps have been taken to trace them and details of their assets.
The missing person's spouse, civil partner, child or sibling does have the ability to intervene in proceedings on an application under the Act. The Attorney General, and any other person with the permission of the court, may also intervene. An application for permission to intervene must be served on the claimant and must specify the applicant's relationship to the missing person, or other interest in the proceedings and their reasons for seeking to intervene. The advertisement of the claim will typically require any person seeking to intervene to do so as soon as possible, and if possible, within 21 days of the advertisement.
Where an application proceeds, there will typically be two hearings. The first is a hearing where the court will usually give directions as to how the matter will proceed. If there is no opposition to the application, and the court is satisfied that the correct procedure has been followed, it may make an order at that hearing, dispensing with the need for a final hearing. If that is not the case, there will be a further, final hearing at which a court order will be made.
The Register of Presumed Deaths
The Act provides for the creation and maintenance by the Registrar General for England and Wales of the Register of Presumed Deaths. A certified copy of an entry in the Register of Presumed Deaths in relation to a person is evidence of the person's death without further or other proof, if it purports to be sealed or stamped with the seal of the General Register Office.
What happens next?
A certified copy of the declaration of presumed death is required to apply for a grant of representation. This has the same legal effect as a death certificate. Therefore, the application for a grant must wait until the corresponding entry is available on the Register of Presumed Deaths.
While it is possible to obtain a grant at that time, it would be prudent to consider the likelihood of future variations or revocations before distributing the estate. Given the circumstances, there are additional factors that trustees and personal representatives should take into account to prevent further issues/claims arising in the future, and appropriate legal advice ought to be sought in respect of the same.
David has specialist knowledge in contentious trust and estate disputes involving the administration of estates, will validity claims, proprietary estoppel, Inheritance Act claims and also disputes involving trustees, executors and beneficiaries.
If there is anything you want to discuss or if you require any further assistance relating to the issues raised, please contact our will dispute lawyers.
