Justice CommitteeWritten evidence from the Ministry of Justice

Executive Summary

1. The Department is aware that there are concerns about the working of the law in England and Wales in relation to the property and affairs of persons who have disappeared and are thought to be dead. These have been expressed most recently by the All Party Parliamentary Group for Runaway and Missing Children and Adults in the report of its Inquiry into support for families of missing persons published in July 2011. The Department is giving careful consideration to this report, which includes recommendations on issues relating to presumption of death.

2. The Department welcomes the Inquiry by the Justice Committee into presumption of death. The Department has not reached any conclusion as to whether any legislative or procedural changes are necessary in relation to presumption of death in England and Wales and will not do so until it has had the opportunity to consider the outcome of the Justice Committee’s Inquiry in detail.

3. The Department acknowledges that unlike the situation in Scotland and Northern Ireland there is no single procedure for obtaining a certificate of presumed death equivalent to a death certificate in England and Wales. Instead, there are a number of procedures leading to specific outcomes.

4. The Department considers that consideration of changing the law or practice relating to presumption of death in England and Wales should take into account the experiences of the systems in operation in Scotland and Northern Ireland.

The Issue

5. This memorandum has been prepared in response to the announcement by the Justice Committee on 18 July that it would be holding an Inquiry looking at the issues around the presumption of death in England and Wales. The announcement specified that “presumption of death for these purposes is the process by which people can register a death where there is no body, and resolve their affairs, including financial, marital and probate.”

6. The memorandum addresses each of the questions set out in the announcement.

Does the current system work effectively? Does it create difficulties for families, and if so, how can these be resolved?

7. Under English law, when a person dies proof of his or her death is set out in a death certificate. This facilitates dealing with the affairs of the deceased. A death certificate will usually only be issued where there is an identifiable corpse in existence. In the case of a person who goes missing there will be no corpse to prove death, and consequently no death certificate will be issued. The usual procedures for dealing with the affairs of a dead person are therefore not available.

8. When a person who has disappeared is thought to be dead, the consequences for those left behind vary from case to case. The disappearance of a sole breadwinner will, for example, give rise to very different issues from the disappearance of a dependant. In the context of presumption of death the legal problems are likely to relate to the missing person’s property or his or her status as a spouse or civil partner.

9. In the case of the missing person’s property, the problem is likely to be that those left behind want or need to use the property to pay for outgoings or other expenses but they cannot deal with the property to make the payments or to enter the transactions that the missing person would have done. The objective of obtaining a presumption of death in these cases will usually be to distribute the property under the missing person’s will or the intestacy rules as if the missing person had died.

10. In the case of status as a spouse or civil partner, the problem is likely to be the inability of the spouse or civil partner left behind to enter a new marriage or civil partnership while he or she is still married or partnered to the missing person. The objective in these cases will be to end the existing marriage or civil partnership.

11. Where a person goes missing and there is sufficient evidence that he or she is probably dead then there are a number of specific procedures under which he or she may be presumed dead. In most of these cases the presumption of death is limited to the purposes of the specific procedure in question. This diversity may make resolving problems more complicated but the department would recommend that persons left behind by a missing person should take legal advice to identify the best way to deal with their predicament. The details of the specific procedures are as follows.

Coroner’s Inquest

12. Section 15 of the Coroners Act 1988 provides that a coroner may report to the Secretary of State where he or she has reason to believe that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but that the body is irrecoverable or has been destroyed. On receipt of such a report the Secretary of State, if he considers it desirable, may issue a direction to the coroner to hold an inquest. A death certificate will be issued as a result of the inquest.

13. Table 1 below sets out the number of section 15 applications received, directions made and not made since 2008. In cases where directions were made under section 15 table 2 indicates the certainty of the death.

Table 1

SECTION 15 APPLICATIONS RECEIVED, DIRECTIONS MADE/NOT MADE 2008–2011

		2008	2009	2010	2011 (Jan - Sept)	Totals
Section 15 applications received from coroners		18	14	14	20	66
Direction made		10	13	13	11	47
Direction not made		3	1	1	2	7
Coroner able to proceed without a direction		4	0	0	3	7
Report permanently withdrawn		1	0	0	0	1
Under consideration		0	0	0	4	4

Table 2

STATISTICS ON CERTAINTY OF DEATH FOR DIRECTIONS MADE 2008-2011

Directions made - estimated degree of presumption	2008 (10)	2009 (13)	2010 (13)	2011 (1 Jan- 14 Sep) (11)	Totals
Death is a known fact	4	8	9	5	26
Death is almost certain	2	2	2	2	8
Death is presumed on the balance of probabilities	4	3	2	4	13

14. The Ministry of Justice is currently in liaison with the Missing Persons Bureau (MPB) on the drafting of guidance which is to be published on the MPB website. This guidance will contain details about circumstances where coroners can consider applying for a section 15 direction to open an inquest. This is significant as it may be possible for the families of missing persons who are believed to have died violent, unnatural or sudden deaths to obtain a death certificate following the opening of an inquest under section 15. This would enable them to undertake some administrative tasks surrounding the deceased’s estate. In addition, putting more information in the public domain could aid some families, in certain circumstances where persons are missing, presumed dead and the body is believed to be irrecoverable, to become aware of the role of coroners and inquests.

Decree of Presumption of Death and Dissolution of Marriage and Presumption of Death Order

15. Under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004 where a married person or civil partner goes missing and the surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, he or she can apply for a “decree of presumed death and dissolution of marriage” in the case of a marriage or in the case of a civil partnership a “presumption of death order”. A decree or presumption of death can be obtained at any time after the spouse or civil partner goes missing and will be granted if the court is satisfied that there are reasonable grounds that the missing person is probably dead. The decree or presumption of death order can only be used to dissolve the marriage or civil partnership. They cannot be used to obtain a death certificate and do not allow a person to obtain financial or property orders against the former spouse of civil partner. Such ancillary relief will only be available if the missing person returns.

16. The decree or presumption of death order will allow the spouse or civil partner left behind to marry or enter a civil partnership.

17. The Ministry of Justice does not hold information centrally on the number of High Court applications or orders made for decrees of presumed deaths and consequent dissolution of marriage or civil partnerships made under section 19 of the Matrimonial Causes Act 1973 or section 37 of the Civil Partnership Act 2004.

18. Information for applicants on these procedures can be downloaded from the Family Procedure Rules section of the Justice website. Form D8D “Petition for a presumption of death decree/order and the dissolution of a marriage/civil partnership “ contains information to help people complete the form, whilst Form D8D Notes contains further guidance about the application and the evidence required and the other applications which can be made (for example in respect of financial arrangements).

Leave to Swear Death

19. Where a person goes missing and a member of the missing person’s family wishes to obtain a grant of probate in order to administer the estate of the missing person then he or she can apply for a “leave to swear death order”. A leave to swear death order is made pursuant to Rule 53 of the Non-Contentious Probate Rules 1987. It is an order made solely for the purpose of allowing probate to be granted to the estate of a missing person. It is not, and will not be accepted as, conclusive proof of death. An application is made ex parte on affidavit, usually by the applicant for the grant of probate or letters of administration, to a District Judge of the Principal Registry of the Family Division or a District Probate Registrar. Appeals from the Probate registry are made to the Chancery Division of the High Court.

20. Probate is the process by which the estate of a deceased person is administered: that is gathered in, the debts paid and the net estate distributed in accordance with the will or the intestacy rules. The administration is conducted by executors named in the will under a grant of probate or administrators appointed by the court under letters of administration in the case of intestacy.

21. A leave to swear death order enables an application for probate or letters of administration to be made. The estate of the missing person can then be administered.

22. The numbers of leave to swear death orders made between April and March in each of the last three years were 17 in 2008–09, 16 in 2009–10, and 14 in 2010–11.

Certificate of Presumed Death

23. Where a person has gone missing in identifiable circumstances it may be possible to obtain a “certificate of presumed death”. These can be made under a variety of Acts and regulations.

24. Circumstances where such legislation can apply include where a member of the armed forces has gone missing in action; if a merchant seaman goes down with his ship; where someone cannot be found after a tragedy on an offshore installation; or where someone working in a particular Government department cannot be found after an incident while he or she was on duty, for example, an embassy worker who goes missing in a bomb blast.

25. These certificates are not usually issued by the courts but by the authority responsible for the missing person. They are issued once the authority is satisfied that the person probably died as a result of the incident. They can be used, at the discretion of the court, for probate purposes, but they cannot be used to obtain death certificates.

Social Security benefits

26. Section 8 of the Social Security Act 1998 governs the Secretary of State’s power to make decisions in relation to a person’s entitlement to a range of benefits, including decisions that a person’s spouse may be presumed to have died. Section 3 of the Social Security Administration Act 1992 enables claims for bereavement benefit to be made outside the usual twelve month period where it is difficult to establish death.

Consular Death Registration

27. The FCO has the power to issue consular death registration documents once the relevant local authorities issue official notification of the death—presumed or otherwise. This type of document does not constitute a UK death certificate and does not replace a locally issued death certificate. Consular death registration is not a legal requirement but it means: an entry will be made in the death register by the British Consulate in the country concerned; an applicant will be able to obtain a British style certificate; and a record of the death will be held by the General Register Office in the UK.

28. Records held of the number of deaths registered by FCO do not distinguish between those issued on presumption of death and those issued on known death.

Common Law Presumption of Death

29. The question whether a person who has disappeared has died may arise in many different circumstances. The effect of the terms of a gift in a will or under a trust may for example turn on whether a missing person is dead or alive. In these cases the court may have to decide whether a person is to be deemed alive or dead. Where this situation arises, there is a common law rule of evidence that if a missing person has not, despite thorough enquiries, been seen or heard of for seven years, he or she is presumed to be dead. This presumption can be used generally, but it is only a presumption and not a rule and cannot be used to obtain a death certificate. The court can accept evidence of absence over a shorter period if it wishes. In other words, an interested party does not have to wait for seven years to make an application for an order relating to the presumed death.

30. The Ministry of Justice does not hold centrally information on the number of applications made to the High Court for orders relating to presumed deaths or for the number of orders made.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?

31. In Scotland and Northern Ireland there are single statutory procedures to obtain a certificate of presumed death.

32. In Scotland, the law governing the procedure for obtaining a certificate of presumed death is contained in the Presumption of Death (Scotland) Act 1977 (“the 1977 Act”). The 1977 Act implemented recommendations of the Scottish Law Commission in its Report on Presumption of Death published in 1974.

33. The 1977 Act provides that where any person who is missing is thought to have died or has not been known to be alive for a period of at least seven years, a person having an interest may raise an action of declarator of death of that person in the Court of Session or the Sheriff Court subject to certain conditions concerning domicile or residence. The certificate can be used for the same purposes as a death certificate.

34. About 40 declarations of presumed death were made under the Act in Scotland between 2000 and 2010.

35. In Northern Ireland, the law governing the procedure for obtaining a certificate of presumed death is governed by the Presumption of Death Act (Northern Ireland) 2009. It was originally envisaged that the Act would be for the benefit of the families of “the Disappeared” (those people who are thought to have been killed during the Troubles, and whose remains have not yet been located). As the provisions were developed it became clear the Act should also cater for families of people who have gone missing and are thought to have died in other circumstances. The provisions of the Act are broadly analogous to those of the 1977 Act.

36. No applications have yet been made under the 2009 Act.

37. The legal systems in each of the three jurisdictions within the United Kingdom are different from one another. The Department considers that in deciding whether to take forward any proposals to change the law or practice in relation to presumption of death in England and Wales it would be useful to consider the experiences of the other two jurisdictions.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

38. The Department has not reached a conclusion as to whether legislative change is necessary in England and Wales and looks forward to the findings of the Committee on this point.

September 2011