Presumption of Death and Provisions Relating to Missing Persons Bill (HL Bill 12)

A

BILL

TO

Make provision for the declaration of presumed death of missing persons; for
the administration of the affairs of missing persons; and for connected
purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Declarations of presumed death

Declarations of presumed death

1 Declarations of presumed death

(1) 5Where a person who is missing—

(a) is thought to have died; or

(b) 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 person (the
“missing person”) is presumed to be dead.

(2) 10The High Court has jurisdiction to entertain proceedings for a declaration
under subsection (1) only if—

(a) the missing person was domiciled in England or Wales on the date on
which he or she was last known to be alive or had been habitually
resident there throughout the period of one year ending with that date;
15or

(b) the applicant—

(i) is the spouse or civil partner of the missing person; and

(ii) is domiciled in England or Wales on the date when the
proceedings are begun, or has been habitually resident in
20England or Wales throughout the period of one year ending
with that date.

Presumption of Death and Provisions Relating to Missing Persons BillPage 2

(3) Where an application under subsection (1) is made by a person other than the
spouse, civil partner or a close relative of the missing person to whom the
application relates, the High Court must refuse to hear the application if it
considers that the applicant does not have a sufficient interest in the
5determination of the application.

(4) In subsection (3), “close relative”, in relation to a missing person, means a
parent, child or sibling of that person.

2 Making of declaration of presumed death

(1) Where on an application for a declaration under section 1 the truth of the
10proposition to be declared is proved to its satisfaction, the High Court must
make that declaration and—

(a) where the Court is satisfied that the missing person has died, the Court
must include in the declaration a finding as to the date and time of
death and, where it is uncertain when, within any period of time, the
15missing person died, the Court must find that he or she died at the end
of that period; or

(b) where the Court is satisfied that the missing person has not been
known to be alive for a period of at least 7 years, the Court must include
in the declaration a finding that the missing person died at the end of
20the day occurring 7 years after the date on which he or she was last
known to be alive.

(2) No declaration which may be applied for under section 1 may be made
otherwise than under section 1 by any court or tribunal.

(3) Where, for the purpose of deciding any issue before it, a court or tribunal has
25to determine any incidental question relating to the death of a person, the court
or tribunal may determine that question (but only for the purpose of deciding
that issue), and in the determination of that question, the court or tribunal must
apply the criteria set out in subsection (1).

3 Effect of declaration of presumed death

30Subject to sections 5 and 6, where—

(a) no appeal is brought against a declaration under section 1 within the
time allowed for appeal; or

(b) an appeal against such a declaration is brought and is dismissed or
withdrawn;

35the declaration shall be conclusive and shall be effective against any person
and for all purposes including the ending of a marriage or civil partnership to
which the missing person is a party and the acquisition of rights to or in
property belonging to any person.

4 Declarations by the High Court

(1) 40The High Court, when making a declaration under section 1, may—

(a) determine any question relating to the interest of any person in the
property of the missing person;

(b) make such order in relation to any rights to, or in, any property
acquired as a result of the making of the declaration as it considers
45reasonable in the circumstances of the case; or

Presumption of Death and Provisions Relating to Missing Persons BillPage 3

(c) determine the domicile of the missing person at the time of his or her
presumed death.

(2) An order under subsection (1)(b) may, subject to any conditions specified
therein, direct that the value of any rights to, or in, any property acquired as a
5result of the declaration shall not be recoverable by virtue of an order made
under section 6(2).

5 Variation orders

(1) A declaration under section 1 may, on an application made at any time by any
person, be varied or revoked by an order of the High Court.

(2) 10The Court must refuse to hear an application under subsection (1) if it
considers that the applicant does not have a sufficient interest in the
determination of that application.

(3) An order made under subsection (1) is referred to in this Act as a “variation
order”.

(4) 15A variation order may make any determination referred to in section 4(1)(a) or
(c).

(5) Notice of the making of a variation order shall be served by the Court on—

(a) the Registrar General; and

(b) any person who applied for the declaration under section 1 to which
20the application under subsection (1) relates.

6 Effects on property rights of variation order

(1) Subject to the provisions of this section, a variation order shall have no effect
on rights to, or in, any property acquired as a result of a declaration under
section 1.

(2) 25Where a declaration under section 1 has been varied or revoked by a variation
order, on making the order, the High Court must make such further order, if
any, in relation to any rights to, or in, any property acquired as a result of that
declaration as it considers reasonable in all the circumstances of the case.

(3) An order made under subsection (2) shall not affect any income accrued
30between the date of a declaration under section 1 and the date of the variation
order.

(4) In considering what order to make under subsection (2), the High Court must,
so far as practicable in the circumstances, have regard to the following
considerations—

(a) 35that, in the case of any property which is being or has been
administered under a trust, any person who on account of the variation
order would, apart from subsection (1), have been entitled to rights to
or in any such property, or any person deriving right from that person,
shall be entitled to have made over to him or her by the trustee in full
40satisfaction of those rights only—

(i) the said rights to or in any such property or other property for
the time being representing it which is still in the hands of the
trustee at the date of the variation order; and

(ii) the value, as at the date of distribution, of the said rights to or in
45any such property which has been distributed; and

Presumption of Death and Provisions Relating to Missing Persons BillPage 4

(b) that any capital sum paid by an insurer as a result of the declaration or
any part of such sum should be repaid to the insurer if the facts in
respect of which the variation order was made justify such repayment.

(5) The High Court must not, except where it considers that there are exceptional
5circumstances, make an order under subsection (2) unless the application for
the variation order has been made to the Court within the period of 5 years
beginning with the date on which the declaration under section 1 was made.

(6) Where any person who has acquired rights to or in any property as a result of
a declaration under section 1, or any person deriving right from him or her,
10enters into a transaction with another person whereby that other person
acquires in good faith and for value any right to or in that property or any part
of it, the transaction and any title acquired under it by that other person shall
not be challengeable on the ground that an order under subsection (2) has been
made in relation to that property.

(7) 15A trustee shall be liable to any person having entitlement by virtue of an order
under subsection (2) for any loss suffered by that person on account of any
breach of trust by the trustee in the administration or distribution of the whole
or any part of the property, except in so far as the liability of the trustee may be
restricted under any statutory provision or by any provision in any deed
20regulating the administration of the trust.

7 Insurance against claims

(1) Where a declaration has been made under section 1 then, unless the High
Court otherwise directs, the trustee, if any, must as soon as may be effect a
policy of insurance in respect of any claim which may arise by virtue of an
25order under section 6(2).

(2) Any premium payable by the trustee in respect of a policy of insurance effected
under subsection (1) shall be a proper charge on the estate being administered
by the trustee.

(3) Where a declaration has been made under section 1, an insurer may, before
30making payment of any capital sum to any person as a result of that
declaration, require that person to effect in his or her own name for the benefit
of that insurer a policy of insurance to satisfy any claim which that insurer may
establish in the event of a variation order being made.

8 Supplementary provisions as to declarations etc.

(1) 35A declaration made under section 1, and any application for such a declaration,
must be in the form prescribed by rules of court.

(2) Any application for a variation order must be in the form prescribed by rules
of court.

(3) Rules of court must make provision—

(a) 40as to the information required to be given to the High Court by—

(i) any applicant for a declaration under section 1;

(ii) any applicant for a variation order;

(b) requiring—

(i) notice of an application under section 1;

(ii) 45notice of an application for a variation order;

Presumption of Death and Provisions Relating to Missing Persons BillPage 5

(iii) any information required to be given to the High Court in
accordance with subsection (3)(a);

to be served by the applicant on the Registrar General and on such
other persons as may be prescribed;

(c) 5requiring—

(i) an application for a declaration under section 1;

(ii) an application for a variation order;

to be advertised in such circumstances and in such manner as may be
prescribed; and

(d) 10as to the persons who are to be parties to the proceedings in relation
to—

(i) an application for a declaration under section 1; and

(ii) an application for a variation order.

(4) No proceedings under section 1 or 5 shall affect any final judgment or order
15already pronounced or made by any court or tribunal.

(5) The High Court may direct that the whole or any part of any proceedings
under this Act must be heard in private.

(6) An application for a direction under subsection (5) must be heard in private
unless the Court otherwise directs.

9 20Provisions relating to the Attorney General

(1) Rules of court must make provision requiring—

(a) notice of an application under section 1;

(b) notice of an application for a variation order;

(c) any information required to be given to the High Court in accordance
25with section 8(3)(a);

to be served by the applicant on the Attorney General.

(2) On an application for a declaration under section 1 or an application for a
variation order the High Court may at any stage in the proceedings, of its own
motion or on the application of any party to the proceedings, direct that all
30necessary papers in the matter be sent to the Attorney General.

(3) The Attorney General may—

(a) intervene in the proceedings on any application referred to in
subsection (1) in such manner as the Attorney General thinks necessary
or expedient; and

(b) 35argue before the Court any question in relation to the application which
the Court considers it necessary to have fully argued.

10 Right to intervene

(1) Subject to subsection (2), any person may intervene in any proceedings on—

(a) an application for a declaration under section 1; or

(b) 40an application for a variation order.

(2) A person referred to in subsection (1) who is not—

(a) the spouse or civil partner of; or

(b) a close relative of;

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the missing person whose presumed death is the subject of the application in
question may only intervene in the proceedings on that application with the
leave of the High Court.

(3) Without prejudice to the generality of subsection (1) or (2), a person
5intervening under this section may—

(a) argue before the Court any question in relation to the application which
the Court considers it necessary to have fully argued;

(b) where the person is intervening in proceedings on an application for a
declaration under section 1, seek the making by the Court under section
104 of any determination or order not sought by the applicant; or

(c) where the person is intervening in proceedings on an application for a
variation order, seek the making by the Court of a determination under
section 5(4) or an order under section 6(2).

(4) In subsection (2)(b), “close relative”, in relation to a missing person, means a
15parent, child or sibling of that person.

11 Reference to Chief Coroner

(1) Where, as a result of an application for a declaration under section 1 or an
application for a variation order the High Court has reason to believe that—

(a) the missing person is likely to be dead;

(b) 20the circumstances are such that there should be an investigation into
the likely death; and

(c) no such investigation has been carried out, or is being carried out;

the Court may refer the matter to the Chief Coroner.

(2) On receiving a reference under subsection (1) the Chief Coroner may direct a
25senior coroner to conduct an investigation into the likely death as soon as
practicable, in accordance with Part 1 of the Coroners and Justice Act 2009.

12 Costs

(1) Where any costs are incurred by any person in connection with—

(a) an application for a declaration under section 1; or

(b) 30an application for a variation order;

the High Court may make such order as it considers just as to the payment of
those costs by—

(i) any party to the proceedings; or

(ii) any person intervening in the proceedings where that person is
35not a party to the proceedings.

(2) The High Court may order any costs payable in accordance with an order
made under subsection (1) to be raised and paid out of the property of the
missing person whose presumed death is the subject of the application to
which the costs relate.

(3) 40Where an application for a declaration under section 1 or an application for a
variation order is successful, the costs of such application shall, unless the High
Court directs otherwise, be raised and paid out of the property of the missing
person whose presumed death is the subject of the application to which the
costs relate.

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13 Power to amend certain time periods

The Secretary of State may by order amend any time period (either by
increasing or reducing that period) referred to in any of the following
provisions—

(a) 5section 1(1)(b);

(b) section 2(1)(b); or

(c) section 6(5).

14 Repeal of certain statutory provisions relating to presumption of death

(1) Subject to subsections (2) and (3), the following statutory provisions cease to
10have effect—

(a) section 19 of the Matrimonial Causes Act 1973 (c. 18)1973 (c. 18) (presumption of
death and dissolution of marriage); and

(b) sections 178 and 196(2) of the Civil Partnership Act 2004 (c. 33)2004 (c. 33)
(presumption of death orders).

(2) 15Section 19 of the Matrimonial Causes Act 1973 continues to have effect in
relation to any petition presented to the High Court under subsection (1) of that
section before the date on which subsection (1) of this section comes into
operation.

(3) Sections 178 and 196(2) of the Civil Partnership Act 2004 continue to have effect
20in relation to any application made under section 178(1) before the date on
which subsection (1) of this section comes into operation.

Register of Presumed Deaths

15 Register of Presumed Deaths

(1) The Registrar General must maintain, in the General Register Office, a register
25to be called the Register of Presumed Deaths.

(2) The form in which the Register of Presumed Deaths is maintained is to be
determined by the Registrar General.

(3) Schedule 1 (further provisions about registration) has effect.

Part 2 30Administrative Guardianship Orders

16 Application for an Administrative Guardianship Order in respect of the
estate of a missing person

(1) Any person may apply to the Court of Protection for an order appointing an
Administrative Guardian in respect of the estate of a missing person.

(2) 35In addition to any other parties, the person proposed as Administrative
Guardian is a party to a proceeding on an application under subsection (1).

Presumption of Death and Provisions Relating to Missing Persons BillPage 8

17 Entitlement to give notice of an application

(1) Each of the following is entitled to notice of the making of an application for an
order appointing an Administrative Guardian, notice of the hearing of the
application and notice of any order made by the court in respect of the
5application—

(a) the spouse, civil partner and close relatives of the person in respect of
whom the application is made;

(b) the primary carer (if any) of the person in respect of whom the
application is made;

(c) 10the Attorney General;

(d) any guardian of the person in respect of whom the application is made;
and

(e) any person who has advised the court of an interest in the person in
respect of whom the application is made or in his or her estate.

(2) 15In subsection (1) and in this Part, “close relative” in relation to a person means
a parent, child or sibling of that person.

18 Date for hearing

The court must commence to hear an application under section 16 within 30
days after the day on which the application is received by the court.

19 20Appointment of an Administrative Guardian in respect of the estate of a
missing person

(1) If the court is satisfied that—

(a) the person in respect of whose estate an application has been made
under section 16—

(i) 25is a missing person; and

(ii) usually resides in England and Wales;

(b) while the person is missing there is, or is likely to be, a need for a
decision in relation to the person’s financial affairs or property; and

(c) it is in the best interests of the missing person for a person to be
30appointed to administer their estate while they are missing;

the court may make an order appointing an Administrative Guardian.

(2) An order made under subsection (1) is referred to in this Act as an
“Administrative Guardianship Order”.

(3) A person is a missing person for the purpose of making an order under
35subsection (1) if the court is satisfied that—

(a) it is not known whether the person is alive;

(b) reasonable efforts have been made to find the person; and

(c) for at least 90 days, the person has not contacted—

(i) anyone who lives at the person‘s last-known home address; or

(ii) 40any relative or friend of the person with whom the person is
likely to communicate.

(4) An order may be made under this section in respect of a person who is a
missing person whether the person became missing before or after the
commencement of these provisions.

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(5) An Administrative Guardian may be appointed under subsection (1) to
administer all or a specified part of the estate of the missing person.

20 Persons eligible as Administrative Guardians

(1) The court may appoint as an Administrative Guardian of the estate of a
5proposed represented person any person who consents to act as
Administrative Guardian if the court is satisfied that—

(a) the person will act in the best interests of the proposed represented
person;

(b) the person is not in a position where the person’s interests conflict or
10may conflict with the interests of the proposed represented person;

(c) the person is a suitable person to act as the Administrative Guardian of
the estate of the proposed represented person; and

(d) the person has sufficient expertise to administer the estate or there is a
special relationship or other special reason why that person should be
15appointed as Administrative Guardian.

(2) In determining whether a person is suitable to act as the Administrative
Guardian of the estate of a proposed represented person, the court must take
into account the wishes of the proposed represented person, so far as they can
be ascertained.

(3) 20Where a spouse, civil partner or close relative of the missing person is
proposed as the Administrative Guardian, that person is not by virtue only of
that person’s relationship with the missing person to be taken to be in a
position where the person‘s interests conflict or may conflict with those of the
missing person.

21 25Remuneration of professional Administrative Guardian

(1) An Administrative Guardian other than an Administrative Guardian who
carries on a business of, or including, the administration of estates is not
entitled to receive any fee, remuneration or other reward from the estate of a
represented person for acting as Administrative Guardian under this Act
30unless the court otherwise specifies in the Administrative Guardianship Order.

(2) The remuneration to which an Administrative Guardian who carries on a
business of, or including, the administration of estates is entitled is to be
approved by the court.

22 Payment of costs and expenses to Administrative Guardian or former
35Administrative Guardian from estate

(1) If, in any proceeding, a court orders that an Administrative Guardian pay any
costs of the proceeding, the court may order that the Administrative Guardian
pay, or be reimbursed for, all or part of those costs from the estate administered
by the Administrative Guardian.

(2) 40In any proceeding, a court may order that an Administrative Guardian be
reimbursed for all or part of the Administrative Guardian’s costs of the
proceeding from the estate administered by the Administrative Guardian.

(3) The court may order that the costs incurred in administering an estate by a
person appointed as an Administrative Guardian (including the costs of any