Justice CommitteeWritten evidence from Rachel Elias
1. I Rachel Elias, welcome the opportunity to contribute to the Justice Select Committee Inquiry into Presumption of Death.
2. I have a missing brother, Richard James Edwards, who disappeared on the 1 February 1995 and has not been seen or heard of since that date. At the time of his disappearance he was a member of the successful British band the “Manic Street Preachers.”
3. On the 13 October 2008, the High Court of Justice, Probate Registry of Wales, issued my family a Grant of Representation in respect of my missing brother Richard James Edwards in order to resolve his legal and financial affairs.
4. On the 16 June 2011, I contributed to the “All-Party Parliamentary Group for Runaway Missing Children and Adults”—Inquiry—Support For Families of Missing People—Report with recommendations (July 2011.) I provided oral evidence at the session entitled “Resolving Practical Affairs—Presumption of Death” (16 June 2011–10.00–12.00—Committee Room 5, House of Commons.)
The Current System
5. From my own personal experience of obtaining a court order for leave to swear the death of my brother, I found the current system does not work effectively and proved to be a confusing and unclear process.
6. Initially it proved difficult to find information about how to get started. There appeared to be no advisory organisations that I could access. In addition the family solicitor, from an established and experienced firm, stated that he had never before dealt with such a matter. Indeed he informed us that he would be required to “go away and look further into the matter” before he could proceed and assist us.
7. Regrettably, and from the outset, I was unclear on the processes that I would be required to follow in order to obtain the court order for leave to swear the death of my brother. Constant questions were raised in my mind such as—would I be required to go to court and give evidence? Would there be a death certificate? Would an Inquest be held? Would H.M. Coroner be involved? Such questions remained unanswered for me during the whole process and were a source of great distress to me.
8. The whole procedure for obtaining probate took approximately three years and cost £3,500.00. The final amount was assessed and charged to us at the end of the procedure. Up until this point, my family were not aware of how much the matter would cost as there were no advisory organisations to signpost this question to.
9. This was the first application for probate. Initially the Probate Registrar was not satisfied with my affidavit and returned it on its first draft. In total it had taken me approximately three months to write and I found this a difficult piece of work as I was unclear as to the precise nature of what the Registrar requested. Once satisfied with my affidavit, the Registrar then requested second and third affidavits to be sworn from other parties in order to corroborate the main affidavit and also requested copies of additional corroborative evidence.
10. I found obtaining copies of the additional corroborative evidence difficult as there had been a thirteen year gap since the date of his disappearance.
Further Difficulties
11. Regrettably, and despite being issued a Grant of Representation from the Probate Registry of Wales for my missing brother Richard Edwards, I have still encountered problems with Institutions not accepting the Grant.
Examples have included PRS—The Publishing Rights Society—and Lloyds TSB. Both institutions explicitly refused to accept the Grant of Representation stating that it was not a “death certificate”. Such matters have since been resolved following us, as a family, having to send the original court order to each organisation and further having to explain the nature of the court order to them. This proved both time consuming and upsetting to us as a family.
12. I also remain disappointed with the current system as the law states that:
“An order for leave to swear death is retained in the registry and copies of it are never given out”. (Applications Without Notice— 25.31.)
The application was examined, and the Grant issued, by the District Registrar and involved no third parties or hearing. We had taken over three years to achieve it and kept it confidential to us as a family.
13. However, despite this, and within days of the Grant being issued, the information became public knowledge and leaked into all of the national and regional newspapers, music magazines, and television and radio articles. His obituary was written and published in the broadsheet newspapers citing the Grant of Representation as evidence that he had died. In addition the financial value of his said estate, as stated on the Grant of Representation, was also leaked to the media and published accordingly.
14. After having finally reached probate, this development was upsetting and has caused enormous implications to the family that continues to this day. As part of this Inquiry I would like the Committee to consider whether current provisions are adequate in respect of this.
Conclusion
I welcome the opportunity of contributing to the Justice Select Committee Inquiry into Presumption of Death and I remain committed to a Presumption of Death Act.
I recognize the challenges that I faced in resolving the practical and legal affairs of my brother. Further, I recognize that, had my brother had wider issues to deal with, such as a marriage dissolution or having to deal with joint issues, then the procedure would proved to have been even more challenging and distressing.
I welcome a framework to improve the current system for Presumption of Death that could address the challenges that exist to the current system in England and Wales for Presumption of Death provisions. I call for a Presumption of Death Act to address this.
September 2011