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Tragically, whether we are informed by local reports, social networking sites or national media, rarely a few days go by without news focused on a missing person. The reality is undeniably worse than our exposure with figures last year revealing Police across England, Scotland and Wales handle more than 1,000 missing person reports every day.

Jennifer GilmourFortunately, many of those initially reported missing are reunited with their loved ones in the following days. But consider the loved ones left hoping for that reunion, hoping perhaps throughout weeks, months and years of enquiry, publicity, false alarms… The scale of that fearful uncertainty must be overpowering.

Add to that uncertainty questions which are likely far down the list initially … what happens to the missing person’s money, property, possessions? Does their marriage or civil partnership still stand, when not even their partner knows when, or whether, they will return?

This is sensitive territory for the law but, nonetheless, it is down to the law to provide a solution: a small number of answers for those in a position where so many answers are out of reach. In Scotland, these are as follows:

Generally, anyone with an interest in a missing person’s property or finances can apply to court to have the person treated as though they have died. This sounds drastic but, if successful, is a practical way to allow the missing person’s affairs to be organised without the missing person’s input. The court action is called one of declarator of the missing person’s death.

Although in these circumstances physical evidence cannot confirm death, the procedure is used where death is presumed.

An interested person can apply to the court when either:

  1. The missing person is understood (due to the circumstances of the disappearance) to have died; or
  2. The missing person has not been known to be alive for at least 7 years, proved by there having been no contact from the person for that period. It is not possible to go to court on this basis until the 7 years have expired.

There is no specific application form, with court forms setting out the circumstances in writing instead being required.

Whether a hearing of evidence in court is required depends on whether anyone argues against the application.

If the application is successful, the court will issue an order (called a ‘decree of declarator of death’) and will notify the Registrar General for Scotland so as the death can be formally registered. This then allows money, property and possessions of the missing person to be dealt with as though the person has died (and therefore according to succession laws alongside any Will prepared by the missing person). In addition, the order brings an end to any marriage or civil partnership the missing person was part of.

In Scotland, this procedure is governed by the Presumption of Death (Scotland) Act 1977. Whether an action can be raised requires particular consideration where (i) the person applying did not regard Scotland their home, nor had their main residence in Scotland, for one year before making the application; and/or (ii) the missing person did not regard Scotland as home, nor have their main residence in Scotland, for one year prior to going missing.

If you wish to raise an action under the 1977 Act as set out above, you should seek legal advice, particularly to confirm your eligibility and to draft the documents required. Court fees need to be paid once the court action is started, unless the personal finances of the person applying meet certain criteria, and a solicitor can advise you about this. Instructing a solicitor will itself incur a fee unless you are entitled to Legal Aid and Assistance. If you would like to discuss your situation or to receive any further information, our Private Client department will be happy to arrange a confidential discussion.

Blog by Jennifer Gilmour

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