Sadly, the media are often reporting cases of people who have gone missing. There have been many recent high profile searches, such as the search for Corrie McKeague, who was last seen on a night out in Bury St Edmunds on 24 September 2016.
Missing People recently published UK statistics which show that a person is reported missing every 90 seconds in the UK, with 180,000 people being reported missing each year. Many of those who are reported missing are subsequently located. Unfortunately, there are some whose whereabouts cannot be established, and they are not seen again.
The law requires to address these difficult situations in a very sensitive manner. On one hand, there will be distressed loved ones of the missing individual who may wish to wind up the estate and seek some form of closure. On the other hand, the missing individual may subsequently be located, and may seek access to their belongings.
Historically, the law in these circumstances was not particularly obliging. The law assumed that the missing person would have continued to live to an old age at which time they would have died from natural causes - only at that time could their estate be distributed. It would only be in limited circumstances that the court may have declared that the missing individual had died prior to this length of time elapsing.
The law relating to this matter is now set out in the Presumption of Death (Scotland) Act 1977. This sets out the procedure which can be followed to have a missing individual declared dead, even if no body is ever recovered.
A person can apply to the court for a declarator of death when the missing individual is thought to have died, or they have not been known to be alive for at least 7 years. Any person “having an interest” may raise a court action seeking a declarator of death.
For example, if a person disappears at sea, the court may be persuaded to make a declarator of death in light of the fact that a ship has sunk, that the individual was on board and that no body was recovered. The court may declare that the individual died at the time of this disappearance. If an individual simply leaves their home and is not seen again, then the court could be persuaded after a period of 7 years that they have died, and the date of death would be at the end of the 7 year period.
If the court is satisfied that it is more likely than not that the missing person has died, they shall issue a declarator of death.
Upon the declarator of death being issued, the individual’s estate can be administered and any marriage or civil partnership can be dissolved.
What happens if the individual who was declared dead is subsequently found to be alive? The legislation makes it clear that any marriage or civil partnership which was dissolved by the declarator of death shall remain dissolved. It is possible to apply to the court and request that the declarator of death be varied or recalled.
Pursuing a court action for a declarator of death can be complex, and we would always recommend specialist legal advice.
