Wills and probate: applying for presumption of death

The process of applying for the presumption of death of a missing person is complex. A recent High Court ruling, in a case involving a person who had disappeared after entering the sea, sheds light on how a missing person’s will can be brought into effect.

The High Court has given some useful guidance on applying for a presumption of death in order to bring a person’s will into effect. The issue arose when the court had to determine whether a claimant had standing to apply for a declaration of presumption of death under the Presumption of Death Act 2013 in respect of a missing person, referred to as F.

F was an only child, and her parents were deceased. On 29 January 2022, she had driven down to and entered the sea in Cornwall. She had not been seen since. The claimant in the case was unrelated to F but had been a close friend for many years. When F made a will in September 2020, she had appointed the claimant as an executor. The claimant, who intended to prove the will, applied for a declaration of presumption of death under the Act. An issue arose as to the claimant's standing, given that she was not a "spouse, civil partner, parent, child or sibling" of F under the 2013 Act. The issue was whether the claimant, as a person who intended to prove a will, had a "sufficient interest" in the determination of the application for the purposes of the Act. The court ruled that she had and granted the application.

It noted that asking the court to declare that a person was presumed dead involved many aspects, including:

(i) the emotional interest that members of a family, and close friends, had in each other's lives
(ii) the financial interest that some people had in the continued lives of others, such as minors living with the missing person and other dependants
(iii) the financial interest that some had in the deaths of others, such as heirs and beneficiaries under insurance policies
(iv) the public interest in aspects of government such as civil registration, taxation and social security.

The court held that where an executor wanted to prove a will, but could not give an exact date of death, they had to either obtain a presumption of death declaration or seek leave to swear to or give evidence as to the death. The latter had been done in the past in relation to missing persons when there was no statutory presumption jurisdiction. Leave was given usually on the basis that seven years had elapsed since the disappearance.

However, the court had given leave sooner in clear cases or where there was otherwise good reason. An executor who had obtained probate owed fiduciary duties to the creditors and beneficiaries of the estate. They did not act out of pure self-interest, therefore the court was necessarily also considering the position of those who would benefit from the estate. An applicant for a presumption declaration could not obtain any rights (whether personal or fiduciary for others) in relation to the missing person's estate merely by obtaining the declaration; there still had to be a successful probate application, in which the testamentary paper could be challenged if appropriate. Accordingly, there would be no risk to the estate in allowing the application to be made.

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