Presumption of Death Bill

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Presumption of Death Bill

Presumption of Death Bill
1

A
Bill
To
Make provision in relation to the presumed deaths 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:—
Declarations of presumed death
1
Declarations of presumed death
(1)
Where 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,
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any person may apply to the High Court for a declaration that the person (in
this Act referred to as the “missing person“) is presumed to be dead.
(2)
The High Court has jurisdiction to entertain proceedings for a declaration
under subsection (1) if (and only if)—
(a)
the missing person was domiciled in England and Wales on the date on
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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;
or
(b)
the applicant—
(i)
is the spouse or civil partner of the missing person; and
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(ii)
is domiciled in England and Wales on the date when the
proceedings are begun or has been habitually resident in
England and Wales throughout the period of one year ending
with that date.
(3)
Where an application under subsection (1) is made by a person other than—
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(a)
the spouse or civil partner of; or
(b)
a close relative of,

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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 determination of that application.
(4)
In subsection (3)(b), “close relative”, in relation to a missing person, means—
(a)
the parent or child of that person; or
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(b)
the sibling (whether of the full blood or the half blood) 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
proposition to be declared is proved to its satisfaction, the High Court must
make that declaration and—
10
(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
missing person died, the Court must find that he or she died at the end
of that period;
15
(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
the day occurring 7 years after the date on which he or she was last
known to be alive.
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(2)
The High Court, on the dismissal of an application for a declaration under
section 1, may not make any declaration for which an application has not been
made.
(3)
No declaration which may be applied for under section 1 may be made
otherwise than under section 1 by any court or tribunal.
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(4)
Where, for the purpose of deciding any issue before it, a court or tribunal has
to 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).
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3
Effect of declaration of presumed death
Subject 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 the appeal is
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dismissed or withdrawn,
the declaration shall be conclusive of the matters contained in it and shall,
without any special form of words, 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
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belonging to any person.
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Powers of the High Court
(1)
The 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;
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Presumption of Death Bill
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(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 reasonable in
the circumstances of the case; or
(c)
determine the domicile of the missing person at the time of his or her
presumed death.
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(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
result of the declaration shall not be recoverable by virtue of an order made
under section 6(2).
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Variation orders
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(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)
The 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.
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(3)
An order made under subsection (1) is referred to in this Act as a “variation
order”.
(4)
A 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—
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(a)
the Registrar General;
(b)
any person who applied for the declaration under section 1 to which
the application under subsection (1) relates.
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Effect on property rights of variation order
(1)
Subject to the following provisions of this section, a variation order shall have
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no effect on rights to or in any property acquired as a result of a declaration
under section 1.
(2)
Where a declaration under section 1 has been varied or revoked by a variation
order, the High Court, on making the order, must make such further order, if
any, in relation to any rights to or in any property acquired as a result of that
30
declaration as it considers reasonable in all the circumstances of the case.
(3)
An order made under subsection (2) shall not affect any income accruing
between 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,
35
so far as practicable in the circumstances, have regard to the following
considerations, namely—
(a)
that, 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
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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
satisfaction of those rights only—

Presumption of Death Bill
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(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
any such property which has been distributed;
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(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
circumstances, make an order under subsection (2) unless the application for
10
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,
enters into a transaction with another person whereby that other person
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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)
A trustee shall be liable to any person having entitlement by virtue of an order
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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
regulating the administration of the trust.
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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
order under section 6(2).
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(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
making payment of any capital sum to any person as a result of that
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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)
A declaration made under section 1, and any application for such a declaration,
40
must be in the prescribed form.
(2)
Any application for a variation order must be in the prescribed form.
(3)
Rules of court must make provision—
(a)
as to the information required to be given to the High Court by—
(i)
any applicant for a declaration under section 1;
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(ii)
any applicant for a variation order;
(b)
requiring—
(i)
notice of an application under section 1;
(ii)
notice of an application for a variation order;
(iii)
any information required to be given to the High Court in
5
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)
requiring—
(i)
an application for a declaration under section 1;
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(ii)
an application for a variation order,

to be advertised in such circumstances and in such manner as may be
prescribed;
(d)
as to the persons who are to be parties to the proceedings in relation
to—
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(i)
an application for a declaration under section 1;
(ii)
an application for a variation order.
(4)
No proceedings under section 1 or section 5 shall affect any final judgment or
order already pronounced or made by any court or tribunal.
(5)
The High Court may direct that the whole or any part of any proceedings
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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.
(7)
In this section, “prescribed” means prescribed by rules of court.
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Provisions relating to the Attorney General
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(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
with section 8(3)(a),
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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
necessary papers in the matter be sent to the Attorney General.
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(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)
argue before the Court any question in relation to the application which
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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

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(b)
an 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,

the missing person whose presumed death is the subject of the application in
5
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
intervening under this section may—
(a)
argue before the Court any question in relation to the application which
10
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
4 of any determination or order not sought by the applicant;
(c)
where the person is intervening in proceedings on an application for a
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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)
the parent or child of that person; or
(b)
the sibling (whether of the full blood or the half blood) of that person.
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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)
the circumstances are such that there should be an investigation into
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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
senior coroner to conduct an investigation into the likely death as soon as
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practicable, in accordance with Part 1 of the Coroners and Justice Act 2009.
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Costs
(1)
Where any costs are incurred by any person in connection with—
(a)
an application for a declaration under section 1; or
(b)
an application for a variation order,
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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
not a party to the proceedings.
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(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.

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(3)
Where 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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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)
section 1(1)(b);
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(b)
section 2(1)(b); or
(c)
section 6(5).
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Repeal of certain statutory provisions relating to presumption of death
(1)
Subject to subsections (2) and (3), the following statutory provisions cease to
have effect—
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(a)
section 19 of the Matrimonial Causes Act 1973 (c. 18) (presumption of
death and dissolution of marriage);
(b)
section 178 and section 196(2) of the Civil Partnership Act 2004 (c. 33)
(presumption of death orders).
(2)
Section 19 of the Matrimonial Causes Act 1973 continues to have effect in
20
relation to any petition presented to the High Court under paragraph (1) of that
Section before the date on which subsection (1) comes into operation.
(3)
Section 178 and section 196(2) of the Civil Partnership Act 2004 continue to
have effect in relation to any application made under subsection (1) of section
178 before the date on which subsection (1) of this section comes into operation.
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Register of presumed deaths
15
Register of Presumed Deaths
(1)
The Registrar General must maintain, in the General Register Office, a register
to be called the Register of Presumed Deaths.
(2)
The form in which the Register of Presumed Deaths is maintained is to be
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determined by the Registrar General.
(3)
Schedule 1 (further provisions about registration) has effect.
Supplementary
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Orders and regulations
(1)
Subject to subsection (2) and paragraph 7(2) of Schedule 1, orders and
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regulations made under this Act (except an order made under section 20(2))
shall be made by statutory instrument which are subject to annulment in
pursuance of a resolution of either House of Parliament.
(2)
No statutory instrument made—