Probate & Missing Persons: Recent Developments (Part 2)

18/08/2023

In this series of articles, Ollie Murrell and James Fuller provide an update on recent developments in relation to the tools available to executors, administrators, and trustees, when dealing with the estate of a missing person.

Read part one here.

Applications under the Presumption of Death Act 2013: Who can apply?

Background

Section 1 of the Presumption of Death Act 2013 (“the 2013 Act”) provides that where a person who is missing is (i) thought to have died, or (ii) has not been known to be alive for a period of at least 7 years, any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

This is caveated by subsection 1(5) which provides that the court must refuse to hear an application if (i) the application is made by someone other than the missing person’s spouse, civil partner, parent, child or sibling, and (ii) the court considers that the applicant does not have a sufficient interest in the determination of the application. Apart from the closed category of a missing person’s “spouse, civil partner, parent, child or sibling”, the 2013 Act is silent on who else might have “sufficient interest” in order to make an application for a declaration that a missing person is presumed to be dead.

Section 2 of the 2013 Act provides that on an application under section 1, the court must make the declaration if it is satisfied that the missing person has (i) died, or (ii) has not been known to be alive for at least 7 years.

Re Fisher[1]

In the recent case of Re Fisher, James Fuller represented the successful claimant in respect of an application for a declaration of presumption of death in respect of a missing person, Ms Caroline Fisher.

Ms Fisher had driven down to the Cornish Coast on 29 January 2022 and had entered the sea. She had left several suicide notes and had not been heard of since. Her body was never found and the police’s working theory, following an investigation, was that she had taken her own life.

The claimant in Re Fisher had been a close friend of Ms Fisher for many years. Ms Fisher had made a will in September 2020 and had appointed the claimant as one of her executors. Ms Fisher’s parents had died some years ago, she had no siblings, and her closest living relatives appeared to be two cousins.

Understanding Ms Fisher to have taken her own life, the claimant wished to begin administering the estate, but had no ability to administer the estate until a death certificate had been obtained. Accordingly, the claimant brought a claim under CPR Part 8 by which she applied under section 1 of the 2013 Act for a declaration that Mr Fisher was presumed to be dead, on the basis that Ms Fisher was missing and was thought to have committed suicide.

HHJ Matthews, sitting as a High Court judge, was satisfied on the evidence before the court that Ms Fisher was dead. He was concerned, however, with the self-contained question of the standing of the claimant to make the claim, as the claimant was not Ms Fisher’s spouse, civil partner, parent, child or sibling, and the court was therefore to refuse to hear the application unless it considered that the claimant had a “sufficient interest” in its determination.

HHJ Matthews allowed the claim and held that a person who does intend to prove a testamentary paper does have sufficient interest in order to apply for a declaration of presumption of death under section 1 of the 2013 Act, even if that testamentary paper has not yet been proved.

HHJ Matthews set out the following reasons for allowing the claim:

1. If a putative executor wishes to prove a will but cannot give the exact date of the testator’s death, then they would either have to obtain a declaration under section 1 of the 2013 Act or seek leave under rule 53 of the Non-Contentious Probate Rules 1987 to swear or give evidence as to the death.
2. On an application under section 1, the court is to bear in mind that an executor who obtains probate will owe fiduciary duties to the creditors and beneficiaries of the estate.
3. An applicant for a presumption declaration cannot obtain any rights (whether personal or fiduciary for others) in relation to the missing person’s estate merely by obtaining the declaration. There must still be a successful probate application, in which the testamentary paper may be challenged if appropriate. Therefore, there should be no risk to the estate of a missing person in granting a declaration under section 1.
4. A declaration under section 1 would be useful even if it transpired that the paper was not a valid will, or if it was but there was a later valid will. This is because, if the applicant for a grant is not going to apply for leave to swear to death, it still needs to be shown that the missing person is at least presumed to be dead.

Comment

Prior to Re Fisher, case law was silent on whether an executor could bring a claim under the 2013 Act. The case now provides a precedent that named executors on the will of a missing person can apply for a declaration of presumption of death under section 1 of the 2013 Act.

Re Fisher also provides,via obiter comments, guidance to “would-be” administrators of an estate, who wish to bring a claim for a presumption of death under the 2013 Act, as their entitlement to administer an estate is not dependent on a conditional “piece of paper” but rather determined by section 46 of the Administration of Estates Act 1925.

[1] [2023] EWHC 979 (Ch), [2023] 1 W.L.R. 2294, [2023] All ER (D) 23 (May), [2023] W.T.L.R. 1187, [2023] 9 C.L. 122