06 April 2020 - Article
Being alive has legal consequences. So too does death. When someone goes missing (in addition to the emotional trauma) a legal vacuum occurs. The law tries to offer a solution which balances the need for legal certainty against the possibility that a missing person will reappear.
Deciding that a missing person has died, and the date on which that person is deemed to have died, may have significant consequences.
For example, during the time that person has been missing, another person may have died having left the missing person a legacy. The determination of the date of the missing person’s death will decide whether or not the missing person’s estate takes the benefit of that legacy. There are other complications, such as whether pension payments have to be repaid and so forth.
Parliament has tried to resolve the legal tensions surrounding the status of missing persons most recently with the Presumption of Death Act 2013. The Act provides (Section 2) that:
(1) ‘…the court must make the declaration [that the missing person has died] if it is satisfied that the missing person –
(a) has died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) It must include in the declaration a finding as to the date and time of the missing person’s death;
(3) Where the court –
(a) is satisfied that the missing person has died, but
(b) is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.
(4) Where the court –
(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but
(b) is not satisfied that the missing person has died,
the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day on which he or she was last known to be alive.’
If the Court is satisfied that the missing person has died, it should also decide when that person died.
If the Court is satisfied that the missing person has died but is uncertain when, the missing person is presumed to have died at the point at which, on the balance of probabilities, such uncertainty disappeared.
In some cases the Court may be able to determine a limited window within which the death must have occurred; if so, the presumed date of death will be the final date in this window.
In many cases, however, no such window will be discernible; each passing day will make it increasingly likely that the missing person has died, but the Court may still find it impossible to point to the day on which the balance of probabilities tilted in favour of his having died. Recent case law indicates that in such circumstances the Court will specify the date on which it hands down judgment as the date of death. This can create potentially unintended or unfair consequences, and supports the argument for legislative reform.
Where a person has been missing 7 years but the Court is not satisfied that person is necessarily dead, nevertheless the Court must declare that person to be presumed to have died on the 7th anniversary of the day on which he or she was last known to be alive.
The presumption of death in practice – Norman Johnson
A recent example of the practical implications of the Presumption of Death Act 2013 has come with a decision in the estate of Norman Reginald Johnson.
Norman had made a Will in 1996, which was effectively revoked in 2008 when he and his partner Colin entered into a civil partnership. Norman developed early-stage dementia and, in 2011, he went missing. At the time he and Colin owned their property jointly (what is called a joint tenancy).
The last sighting of Norman was on 30 March 2011. Despite considerable press coverage nothing was ever seen of Norman again. In 2016, Colin severed the joint tenancy (meaning that he and Norman, if still alive, had separate half-shares in their home). Colin died shortly thereafter in 2017.
One of Norman’s brothers asked the Court to declare that his brother was presumed dead. The hearing took place on 5 February 2020 before Judge Matthews.
• Who took Norman’s share in the property?
If Norman died at the time he went missing in 2011, when the joint tenancy was still in place, Colin (or now Colin’s estate) would be entitled by survivorship to the whole of the property.
If Norman was presumed to have died at some point after severance of the joint tenancy but before Colin’s death, then Colin, as surviving civil partner (and now Colin’s estate), would be entitled to Norman’s estate on intestacy.
If, however, Norman was presumed to have died after Colin, then Norman’s brothers would take his share on intestacy.
• Judge’s decision
Judge Matthews was satisfied that all the circumstantial evidence pointed to Norman having died. However, he could not be certain at what point between the date of disappearance and the date of the hearing death occurred.
The possibility that Norman had died only shortly before the hearing, which took place more than seven years after Norman’s disappearance, was ‘extremely remote’. But, the Judge said, ‘the problem is that I cannot identify a point between the disappearance and the hearing when the balance of probabilities crosses the line’. Thus, even though the Judge Matthews was convinced that Norman was most likely to have died in the days immediately following his disappearance, the uncertainty as to precisely when after this point Norman died compelled him to find that Norman had died at the time of his decision (ie, on 5 February 2020).
That leads to the, arguably absurd, position that the Judge declared Norman to have died on 5 November 2020 whereas if he had not been satisfied Norman had died he would have declared him to be presumed to have died on 30 March 2018 (ie 7th anniversary of the last known sighting). The judge said he didn’t regard this as according with common sense but it is what the law as it presently stands requires.
In the circumstances, Norman’s share of his property passes to his brothers on intestacy, rather than to Colin’s estate.
The presumption of death in practice – CD, re AB
Chief Master Marsh had a similarly difficult decision to make in the case of CD, re AB  which concerned a British citizen who was taken hostage in Yemen in 2009 while working there with an NGO.
The facts of the case were not covered extensively in Chief Master Marsh’s judgment out of respect for the Claimant, who was AB’s wife. However, it appears the deemed date of death was relevant not to the issue of who might inherit AB’s estate, but to the question of what sums were due under his pension.
At paragraph  of his judgment, Chief Master Marsh acknowledged the general point that determining the date of death in a missing persons case is “not merely a theoretical problem because if the missing person has a pension in payment, or was in receipt of benefits, a substantial sum may have been received during the period in which the person was missing and the estate may face a claim for repayment”.
After considering the evidence the judge was satisfied that AB had died, but was unable to determine the date of death. He therefore concluded that the date of death should be the date of the hearing, which was the first occasion on which it was possible to say on the balance of probabilities that AB was dead.
In cases such as those discussed above, the fiction that the date of death is the date of the hearing leads to an outcome which, as Judge Matthews acknowledged in Johnson, may defy common sense.
And that fiction carries a considerable risk of injustice. The beneficiary of a missing person’s estate may lose or gain significantly from the imposition of so artificial a date of death. While a later date may relieve the estate of the missing person of a potential liability to repay years’ worth of pension payments, it does so at the expense of the pension provider.
The date on which a final hearing occurs depends on factors outside of the control of interested parties, and entirely unconnected to the circumstances of the missing person. Legal practitioners and grieving families alike will benefit from a clear time-limit for establishing the date of death, in keeping with the apparent intention behind the 2013 Act.
It is to be hoped that the Ministry of Justice’s Policy Committee (which helped to draft the Act), or potentially the Law Commission, will review and correct what appears to be an unintended consequence of the original drafting.
Links to the cases are here: