Why has the law relating to missing people suddenly hit the headlines?
Two reasons: the charity, Missing People (http://www.missingpeople.org.uk), is pushing for a change in the law and the Justice Select Committee has just produced a Report (Presumption of Death Twelfth Report of Session 2010–12) urging the Government to take forward its three proposals for change.
Why do we need change?
Clearly when an adult goes missing, their family will suffer pain and distress. What many people do not realise is that they will often suffer serious financial repercussions as well. The Justice Committee Report identified the following problems:
- a legislative patchwork of bewildering complexity;
- inability for family members to administer the finances of the missing relatives;
- lack of information about the actions those left behind are able to take; and
- ignorance of the correct procedures to be followed by police, lawyers, banks, insurers and others.
The current law on missing people
The law that relates to resolving the affairs of people who go missing is an extensive mixture of statutory and common law provisions; indeed, one witness to the Committee described it as a “crazy paving of legislation, of statutory and non-statutory provisions.”
Those trying to deal with the affairs of a missing person have the following main options.
1. The presumption of death
A court will presume a person to be dead when there has been no evidence of his or her continued existence for seven years. This a rebuttable common law presumption and, usually, the court will presume death if: there is no evidence that the missing person has been alive during the previous seven years; the people most likely to have heard from the missing person have not had any contact; and, during those seven years, inquiries have been made for the missing person, without success.
If not satisfied on the facts of the case the court will reject the application.
It is possible to make an application before the person has been missing for seven years if the facts of the case allow, for example if inquiries were thorough and wide-ranging.
A major defect of the court order route is that the order will state that the missing person is presumed to have died for the point that was the subject of the application, but not for any others. This can result in a need for multiple applications: for example an order to pay out life insurance and a separate order to put an end to a joint mortgage.
2. Leave to swear death
The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person "to the best of his information or belief".
In this case the court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person's affairs.
Leave to swear death can be applied for at any point after the person's disappearance, i.e. there is no need for the lapse of seven years.
Specific facts may mean that probate will be granted without such an order. An example was the Asian tsunami in 2004. People who could prove their family member was in the area at the time were allowed by the then Department of Constitutional Affairs to apply for probate on production of the evidence
3. Statutory options
The statutory provisions applying to applications to resolve the affairs of missing people are found in a number of acts going back to the nineteenth-century. These include: the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; and the Social Security Act 1998.
Each statutory provision is designed for specific situations, an example being section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a spouse or civil partner can dissolve the marriage or civil partnership if the court is satisfied, on the balance of probabilities, that the missing person is dead.
The problems caused by the current law
Given the complexity of the legal position it is scarcely surprising that professional advisers struggle to get to grips with it when called upon to advise a client. For most of them it will be the first time that they have had to consider this area.
A number of witnesses told the Committee that they had difficulty in getting institutions such as banks and life assurance companies to accept legal orders handed down by the court because of their unfamiliarity.
Many families are in financial limbo as a result of the disappearance of a family member. While families are not required to wait seven years before seeking a court order to resolve the missing person’s affairs, the common law presumption of death means that many do. Obtaining the order can be a costly process, particularly if multiple applications have to be made. Typically where several applications have to be made, costs will run into thousands of pounds.
Even if the court is willing to exercise its discretion and grant an order before the seven years are up, this will not assist families to resolve the immediate financial problems consequent on a person’s disappearance. Direct debits and standing orders can drain the missing person’s bank account.
While some direct debits such as Sky subscription and gym membership can clearly be cancelled immediately, others, such as life assurance and house insurance, need to be paid to protect the missing person’s position.
Recommendations of the Report
The Committee recommends the Government to adopt a threefold strategy to tackle the problems experienced by families trying to cope with the loss of a relative.
(1) The introduction of a presumption of death act to clarify the legal position, modelled on the legislation which already exists in Scotland and Northern Ireland. This would allow a person to be declared dead for all purposes on the production of sufficient evidence.
(2) The introduction of legislation to allow for a system of guardianship orders. These would prevent the devastation that can be wrought on the financial affairs of a missing person in the period before a presumption of death order can be made. Such orders are already in use in Australia. They allow for the administration of a missing person’s property in his or her best interests and for the support of dependents.
(3) Effective guidance for families as well as for those who provide services for them.
What happens next?
Justice Minister Jonathan Djanogly MP, the Government Minister responsible for this area of law, has made a commitment to review this report and announce his response to the recommendations by April this year.
The charity, Missing People, says on its website that it “will be working hard over the coming months to encourage him to adopt the recommendations”.