Justice CommitteeWritten evidence from Kirsten Bennett
Presumption of Death Orders—The Pitfalls
1. Having entered into the profession as a newly qualified solicitor in April 2010 and going on to gain my Higher Rights of Audience I was asked by my probate department to apply for a Presumption of Death Order on behalf of a client (hereinafter “V”). Once obtained this would enable V to claim under her husband’s life insurance policy. To put this into context, V’s husband went missing on 30 August 2003. Whilst the circumstances following his disappearance are outside the remit of this submission, it should be noted that an extensive investigation was carried out following her husband’s disappearance by the police. Television and newspaper appeals were carried out, none of which proved successful.
2. Following his disappearance V struggled on a daily basis, she no longer had the income of her husband and was left to meet all the day to day expenses of running a household and bringing up a young son. During the next seven years she received no help financially and was unable to deal with her husband’s estate until he had been missing for seven years.
3. My research about surrounding Presumption of Death Orders revealed a hotchpotch of inconsistent law, with no one single point of reference. I discovered there were various ways of obtaining a Presumption of Death Order but there was no legislation that could give any guarantees that:
(a)
(b)
4. It was agreed that V would apply to the High Court for a Presumption of Death Order under section 19 of the Matrimonial Causes Act 1973. This in itself was quite a traumatising experience for her as not only was she making a much needed application for a Presumption of Death Order but she was inadvertently bringing an end to her marriage.
5. Submitting the relevant paperwork to Court was relatively straightforward. V had to swear an affidavit and submit her Petition to the High Court. The Principal Registry in London were extremely helpful and it was agreed that Manchester would be the venue of the hearing for ease of the parties.
6. The Judge in Manchester heard my client’s application and made a Presumption of Death Order. He was keen to ensure the wording of the Order was correct and that the Order could be used for the purpose my client required it; to claim the proceeds of the life insurance policy. The Judge commented that if the Insurance Company were still not satisfied and refused to release the fund, she could make an application to join the Insurance Company into the proceedings and that they would be at risk of costs. The Judge also pronounced the Decree Nisi.
7. The sealed Court Order was served on the Insurance Company on 9 June 2011 who responded on 19 July stating that they would pass the Court Order to the Company solicitor but were unable to provide a timescale as to when the matter would be dealt with. On the 1 August the Insurance Company responded and stated that they “would like to make some further enquiries” into her husband’s disappearance particularly why the police had redacted their report. Furthermore they wanted to contact people who had assisted “in the search for her husband”. I have also recently learnt that as the Order itself does specifically refer to the Life Insurance Policy, they may have to refer the matter back to Court on the basis it is insufficient for their purposes.
8. It appears ludicrous that the Insurance Company now want to make further enquiries, had the Court been unsatisfied about the husband’s disappearance surely the Court would have been the appropriate body in which to raise the enquiries and not the Insurance Company. Further the Court would not have proceeded to make the Presumption of Death order. Although the Insurance Company initially stated that they would release the funds once a Presumption of Death Order had been obtained, this appears not to be the case and they are still allowed to prolong matters at their own discretion.
9. If insurance companies had one point of reference eg a piece of legislation perhaps the process would be simplified and minimise the stress and anguish that people left behind following a disappearance of a loved one.
10. It appears that the system in place with regard to obtaining a presumption of death Order is seriously flawed. I read with interest the Enquiry from the APPG who presented their case to the House of Commons earlier this year. The Chief Executive of Missing People coined the different routes as a “crazing paving of legislation” and as such there is always a danger of gaps where crazing paving exists and these gaps can deepen the emotional turmoil of people left behind.
11. If these gaps are either not filled in or the system is not completely overhauled the unsatisfactory state of this area of law will continue. Scotland and Northern Ireland have already identified the need for reform and have respectively brought in relevant statues to deal with missing people. Whilst it would appear that the only reason England have not caught up with their counterparts is because the draft bill prepared in 2009 lacked clarity, this should not be used as an excuse to continue to drag their feet. There is real call for change and I would contend it is not just by the relatives directly affected by a missing person but by the professionals who are left having to advise the families as to the law.
September 2011