Executor Obtains Declaration of Presumed Death in Ground-Breaking Case


When people go missing, a judicial declaration that they are presumed dead may be sought by certain members of their family and by others with a ‘sufficient interest’ in the matter. In a case that broke new legal ground, the High Court has ruled that the latter category extends to an executor of a missing person’s will.

The case concerned a woman who had not been heard of since she drove down to and entered the sea in Cornwall. An only child who had lost both her parents, her closest living relatives were apparently two cousins.

A close friend, who was appointed as her executor in a will she made about two and a half years before her disappearance, sought a declaration of presumed death under the Presumption of Death Act 2013. However, an issue arose as to whether she had the legal standing required to pursue such an application.

Section 5 of the Act provides that the court must refuse to hear such applications if they are made by someone other than the missing person’s spouse, civil partner, parent, child or sibling and the court considers that the applicant does not have a sufficient interest in the matter.

Ruling on the issue, the Court noted that the phrase ‘sufficient interest’ is not defined in the Act and that there was no previous legal authority on the point. Unless armed with a declaration, the only, somewhat antiquated, route that might be open to the executor in applying for probate was to seek permission to swear an oath to or give evidence as to the woman’s death.

Until probate was granted, the Court could not know whether the will was valid or if it was the woman’s final will. Having not been tested during the process of obtaining probate, it remained simply an unproved piece of paper, naming her friend as executor, and her estate could not be distributed in accordance with its terms.

The Court concluded that, on a true interpretation of the Act, a person who intends to prove a testamentary paper does have a sufficient interest in applying for a declaration of presumed death, even though the paper has not yet been proved. The executor thus had standing to make the application. In granting the declaration sought, the Court was satisfied on the evidence that the woman was deceased.

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