Government to Introduce Presumption of Death Legislation

Each year approximately 250,000 people are reported missing in the UK and some of these people are never seen again. In England and Wales this can often leave the missing person’s family in a legal limbo, facing several different administrative procedures in an attempt to deal with their affairs. In Scotland and Northern Ireland the situation is easier as there is legislation allowing the courts to declare the fact of ‘death for all purposes’.

On 14 May 2012, a Bill was introduced into the House of Lords which, if made law, would put England and Wales on a similar footing to the rest of the UK. The Presumption of Death and Provisions Relating to Missing Persons Bill follows an earlier Private Members’ Bill on the same subject, which failed to make it onto the statute book in 2009 due to lack of parliamentary time.

The present Bill may well suffer a similar fate, but the publication in July of the Government’s response to the Justice Committee’s report on presumption of death should now mean that some form of legislation in this area is likely to be enacted.

In its response, the Ministry of Justice (MoJ) acknowledges that ‘the current law is complex’ and declares its intention to make the system a better one. The MoJ states that the Government will, when parliamentary time permits, bring forward a Bill to create a certificate of presumed death. In framing the legislation, account will be taken of the terms of the existing legislation in Scotland and Northern Ireland and the 2009 Private Members’ Bill. If the certificate were similar to that provided for in the latest Bill, it would be conclusive for all purposes, thus preventing the need for families to undergo a multiplicity of processes for different outcomes, as is often the case as the law stands at present.

The MoJ did not, however, immediately endorse the recommendation that a system should be developed to appoint a guardian to deal with a missing person’s affairs in the period between the initial disappearance and the issue of a certificate of presumed death (an issue dealt with in the present House of Lords’ Bill). Instead, the MoJ is to ask the Law Commission to look into the practicalities of such a system bearing in mind the conflicts of interest that might potentially arise between the missing person and his or her family.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.