(LRC CP 64 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
December 2011
LAW REFORM COMMISSION’S ROLE
The Law Reform Commission is an independent
statutory body established by the Law Reform Commission Act 1975. The
Commission’s principal role is to keep the law under review and to make
proposals for reform, in particular by recommending the enactment of
legislation to clarify and modernise the law. Since it was established, the
Commission has published over 160 documents (Consultation Papers and Reports)
containing proposals for law reform and these are all available at www.lawreform.ie.
Most of these proposals have led to reforming legislation.
The Commission’s law reform role is carried
out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and
discussion. In accordance with the 1975 Act, it was approved by the Government
in December 2007 and placed before both Houses of the Oireachtas. The
Commission also works on specific matters referred to it by the Attorney
General under the 1975 Act.
The Commission’s role also involves making
legislation more accessible through three other related areas of activity,
Statute Law Restatement, the Legislation Directory and the Classified List of
Legislation in Ireland. Statute Law Restatement involves the administrative
consolidation of all amendments to an Act into a single text, making
legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be
relied on as evidence of the law in question. The Legislation Directory -
previously called the Chronological Tables of the Statutes - is a searchable
annotated guide to legislative changes. The Classified List of Legislation in
Ireland is a list of all Acts of the Oireachtas that remain in force, organised
under 36 major subject-matter headings.
Membership
The Law Reform Commission consists of a
President, one full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Vacant at time of going to print (November 2011)
Full-time Commissioner:
Patricia T. Rickard-Clarke, Solicitor
Part-time Commissioner:
Professor Finbarr McAuley
Part-time Commissioner:
Marian Shanley, Solicitor
Part-time Commissioner:
Mr Justice Donal O’Donnell, Judge
of the Supreme Court
Law Reform Research Staff
Director of Research:
Raymond Byrne BCL, LLM (NUI), Barrister-at-Law
Legal Researchers:
Kate Clancy, LLB
(Hons) (TCD)
Conor Cunningham
BCL (Clinical) (UCC), LLM (UCL)
Dannie Hanna BCL
(NUI), LLM (Cantab)
Donna Lyons LLB
(Dub), LLM (NYU), Attorney at Law (NY)
Tara Murphy BCL
(Law with French Law) (NUI), LLM (Essex), Barrister-at-Law
Máire Reidy BCL
(NUI), LLM (NUI), Barrister-at-Law
Statute Law Restatement
Project Manager for Restatement:
Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges),
Solicitor
Legal Researcher:
Elaine Cahill, BBLS, LLM Eur Law (NUI), Dipl. IP
& IT, Solicitor
Legislation Directory
Project Manager for Legislation Directory:
Heather Mahon LLB (ling. Ger.), M.Litt,
Barrister-at-Law
Legal Researchers:
Aoife
Clarke BA (Int.), LLB, LLM (NUI)
Barbara
Brown BA (Int.), LLB, Attorney-at-Law (NY)
Rachel
Kemp BCL (Law and German) LLM (NUI)
Aileen O‘Leary BCL, LLM, AITI,
Solicitor
Administration Staff
Head of Administration
and Development:
Ciara Carberry
Executive Officer:
Ann Byrne
Legal Information Manager:
Conor Kennedy BA, H Dip LIS
Cataloguer:
Eithne Boland BA (Hons), HDip Ed, HDip LIS, LLB
Clerical Officers:
Ann Browne
Liam Dargan
Principal legal researcher for this
CONSULTATION PAPER
CONTACT DETAILS
Further information can be obtained from:
Head of
Administration and Development
Law Reform
Commission
35-39 Shelbourne
Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The Commission would like to thank the
following people who provided valuable assistance:
Fr. Aquinas Duffy, Founder, Missing Persons Association
Dr. Brian Farrell, Dublin City Coroner
Superintendent Fergus Healy, Garda Missing Persons Bureau
Mr Edo Korljan, Secretary, Committee of Experts on Family Law (CJ-FA), Council of
Europe
Mr Eoin O’Shea, Helpline Co-ordinator, Missing Persons Helpline
Full responsibility for this publication
lies, however, with the Commission.
Table of Legislation xi
Table of Cases xiii
TABLE OF CASES
A Civil Law Aspects of Missing Persons
1.
This Consultation Paper forms part of the
Commission’s Third Programme of Law Reform 2008-14[1]
and examines the civil law aspects that arise when a person goes missing.[2] The main feature of current law in this area is that there is a
presumption that a missing person is alive for up to 7 years, and that a
presumption of death applies after 7 years. These presumptions may be rebutted
by contrary evidence, so that a person can be presumed dead where they have
been missing for less than 7 years; and an absence of 7 years does not always
lead to a declaration of presumed death.
2.
In the Consultation Paper the Commission
examines how the existing law in this area deals with, for example, succession
rights of family members, payment of any life insurance policy and the ongoing
legal status of a marriage or civil partnership. The Consultation Paper also
deals with the precise circumstances in which a declaration of “presumed death”
(in some countries, also referred to as a declaration of “death in absentia”)
may be issued before or after 7 years have elapsed. The Commission also
examines the effect that long absence (or a declaration of presumed death) has
for the civil status of a missing person. This is especially important if he or
she returns after a long time; in turn, this raises civil status questions such
as whether his or her marriage remains valid, whether parental responsibilities
to any children remain in place and whether any dealings with his or her
property during his or her absence should stand.
3.
In the Consultation Paper, the Commission also
examines some immediate practical problems for family members – often referred
to as those left behind – such as how to access a missing person’s bank account
(especially where the bank account is in his or her sole name) so that bills
can be paid. As discussed in the Consultation Paper, the Commission notes that
this area needs to be dealt with separately from the question of presumed
death.
B Statistics on Missing Persons in Ireland
4.
In Ireland, as set out in the Table below, the
Garda Síochána Missing Persons Bureau notes that on average almost 20 people
are reported missing every day, that is, between 7,000 and 8,000 annually.
Table: Missing Persons in Ireland 2003-2010[3]
Year
|
Number of Reports
|
Number still Missing
|
2010
|
8,339
|
28
|
2009
|
7,749
|
66
|
2008
|
7,980
|
39
|
2007
|
7,992
|
52
|
2006
|
6,811
|
53
|
2005
|
5,997
|
34
|
2004
|
5,060
|
51
|
2003
|
3,987
|
58
|
Total
|
53,915
|
381
|
5.
In 2009, the Garda Síochána Inspectorate noted
that, of this total, young persons in contact with the Health Service Executive
(HSE) account for 43% of all missing persons reports filed with the Garda
Síochána, but represent only 8% of persons reported missing. The Garda Síochána
Inspectorate concluded that this indicated that “many were reported missing on
multiple occasions, including one child who was reported missing 169 times.”[4] It is important to note, however, as the Table also indicates, that
the overwhelming majority of missing persons, including young persons in
contact with the HSE, are located within a short time.
6.
Thus, in the 8 year period from 2003 to 2010
covered by these figures, out of a total of 53,915
persons reported missing, 381 remained missing at the time of writing (November
2011), that is, about 0.7% of the total.[5] These figures are
consistent with the statistics collated by the Irish Missing Persons Helpline,
which indicate that 95% of missing persons are found within “a short period of
time.”[6] This is also reflected in similar statistics internationally. For
example, in Australia, 90% of missing persons are found within 2 weeks, rising
to 98% within 6 months.[7] It is clear therefore that in Ireland, as in many other countries,
only a small percentage of missing person cases remain unsolved in the sense
that the vast majority of missing persons turn up within a short time.
C Why People Go Missing and Scope of the Consultation Paper
7.
Persons from all ages and walks of life go
missing in many different circumstances and for different reasons.[8] As the Garda Síochána Inspectorate has noted, young persons in the
care of the Health Service Executive (HSE) account for 43% of all missing
persons reports filed with the Garda Síochána, but represent only 8% of persons
reported missing. The position of missing children generally is quite different
from adult missing persons, and aside from those who come to the attention of
the HSE, children go missing primarily because of abduction, whether by family
members or others. The Commission is conscious that where children go missing
this gives rise to specific issues for those left behind, including for example
how to deal with the person who has abducted the child. This issue, which often
has an international and trans-border aspect, is largely outside the scope of
this project.[9]
8.
By contrast with children, adults who go missing
often do so voluntarily: they may simply wish to break contact with family or
friends, which can sometimes be connected with emotional issues. Another major
reason is financial difficulties such as personal debt, and the missing person
may consider that a sudden disappearance will facilitate leaving the debt
behind. Another small group of people go missing due to memory loss sustained
in a fall or traffic accident: some are located through established missing
persons bureaus or through media coverage, as in the case of the missing
Irishman John Delaney.[10]
9.
In other instances, the circumstances of the
person’s disappearance indicate that he or she has committed suicide but the
body has not been found. In a small number of extreme cases, of course, the
missing person may wish to use his or her disappearance to personal advantage,
by being able to make a claim on, for example, a life insurance policy. There
are well-known examples of where this has been accompanied by leaving evidence
of what turns out to be a faked suicide. These instances pose clear
difficulties for those left behind, and for an insurance company that must
decide whether to make a payment under the life policy. In some instances, of
course, this includes the need to determine whether a missing person has
committed suicide or whether the circumstances indicate an attempt to defraud.
This was the position in the disappearance in 1974 of the English MP John
Stonehouse and, in 2002, of Englishman John Darwin.[11]
10.
Another group of missing adults are those who
disappear where the circumstances indicate they have been abducted and killed,
an example being the disappearance in 1986 of the English estate agent Suzy
Lamplugh.[12] In Ireland, during the violence associated with Northern Ireland
between the 1970s and late 1990s, a number of people were abducted but have not
been found: they are often referred to as “the Disappeared”. While the number
of persons involved is small,[13] the Commission acknowledges that this group of missing persons
merit specific recognition in any reform proposals.[14]
11.
This Consultation Paper is primarily concerned
with missing adults because these cases are more likely to raise the specific
issues that require civil law resolution: how to deal with a missing person’s
bank accounts or investments; whether payment should be made under a life
insurance policy; whether those left behind may apply for administration of the
missing person’s estate on the basis that he or she is presumed dead; and the
civil status of those left behind (for example, whether they are free to
remarry).
D Impact on Those Left Behind and Limits of Current Law
12.
Regardless of the circumstances of a
disappearance or the period of absence of the missing person, the impact on
those left behind, family members in particular, cannot be understated. As the
disappearance of a person is often unanticipated and unexpected, the emotional
trauma caused by the disappearance can be devastating for those left behind.
The mother of a missing teenager in England stated: “There is no preparation,
no luxury of hindsight for dealing with the loss of a loved one. You are thrown
into an alien world.”[15]
13.
The emotional impact on those left behind can be
directly attributed to the lack of information that occurs when a person goes
missing.[16] Therefore, in place of certainty, those left behind are forced to
deal with the “ambiguous loss”[17] of the person. In attempting to cope with this uncertainty, those
left behind often feel stuck or “frozen” in time. This is a normal human
response to having a loved one disappear. As the figures mentioned above
indicate, in most situations where a person goes missing, those left behind
will, within a short time, know what has happened, in particular whether the
missing person is alive or dead. For the small minority where the person does
not turn up, the concept of “missing” occupies an emotional space where those
left behind have no absolutes.[18]
14.
The Commission accepts that the law should, as
far as is practicable, be responsive to the complexity of the consequences that
arise when an adult goes missing; and that the current law does not meet this
standard. In Ireland, there is no generally applicable law concerning the civil
law of missing persons. The current law is confined to: (a) a limited reference
to missing persons in the Coroners Act 1962 and (b) the common law
presumption of life up to 7 years, and a corresponding presumption of death
after 7 years (both presumptions being rebuttable).
15.
Section 23 of the Coroners Act 1962
provides for an inquest to be held where a coroner believes that the
person’s body was, for example, lost at sea or destroyed in a
fire; such an inquest can lead to a declaration of death and the consequent
issuing of a death certificate. The 1962 Act does not, however, provide for an
inquest in respect of missing persons in general terms; most inquests require
the presence of the deceased’s body.
16.
More significantly, the common law presumption
of life up to 7 years and presumption of death after 7 years allows those left
behind to apply to the High Court to have a declaration of presumed
death after 7 years, and this may be shortened if it is reasonable to conclude
that the person is already dead. As discussed in the Consultation Paper, this
declaration of presumed death is limited to allowing the deceased’s estate to
be administered by an executor. It does not have the effect in law of a death
certificate, and therefore it does not, for example, have any effect on any
marriage or civil partnership. The Commission notes in the Consultation Paper
that this 7 year rule has been recognised in specific, limited, circumstances
such as in section 18 of the Land and Conveyancing Law Reform Act 2009 in
connection with beneficiaries under a trust concerning land who are missing.[19]
17.
The Commission also notes that, irrespective of
whether the missing person returns, those left behind are faced with immediate
practical problems, such as how to deal with mortgage payments, access to bank
accounts that might become overdrawn, or insurance renewal on a car or
motorbike. One mother of a missing person in England stated: “I didn’t want my
son’s account to go overdrawn. It mattered so much to me.”[20] The existing law does not facilitate immediate access to,
for example, the missing person’s bank accounts because, in the immediate aftermath
of a disappearance, it will be difficult to establish that the circumstances
indicate any probability that the person is unlikely to return, so that the
common law presumption of life will be difficult to rebut.
18.
It is clear, therefore, that in the absence of a
comprehensive set of legislative provisions that deal with all civil law
aspects of missing persons, those left behind face legal and practical problems
which can increase the emotional trauma they experience. The Commission accepts
that reform of the civil law aspects of missing persons may go some way to
alleviate the emotional impact for those left behind, while at the same time
protecting the legitimate claims of a missing person who later returns.
E Outline of Consultation Paper
19.
The Commission now turns to outline the contents of the Consultation
Paper.
20.
In Chapter 1 the Commission examines how the various ways in which
people go missing can suitably be categorised with a view to developing a clear
legislative framework to deal with the practical civil law issues that fall
within the scope of this Consultation Paper. The Commission has provisionally
concluded that, for the purposes of a declaration of presumed death, there are
two main categories. The first category, where the circumstances of their
disappearance indicates that death is virtually certain, would deal with
persons who go missing in circumstances (whether arising from a civil accident
or arising from a violent incident) where their death is virtually certain
given the circumstances. The second category, where the circumstances of their
disappearance, and its length, indicates that it is highly probable that they
have died and will not return, would apply where the disappearance occurred in
dangerous circumstances or in other circumstances in which loss of life may be
presumed.
21.
The Commission provisionally recommends that, in determining whether a
presumption of death is to be ordered, all the circumstances surrounding the
disappearance must be taken into account, including the following: (a) the
time, location, and circumstances of the disappearance, (b) the extent and
nature of post-disappearance searches, (c) a prior history of fraud, (d) the
presence or absence of a motive for the missing person to remain alive but
disappear, (e) the time between a life insurance policy being obtained and the
subsequent disappearance, (f) facts suggesting the disappearance was a
consequence of foul play, and (g) abandonment of valuable property.
22.
The Commission also provisionally recommends that separate arrangements
should be put in place to deal with the interim administration of the property
of a missing person, in particular where it is not clear whether the person
will return. This would deal with the immediate and practical issues already
mentioned.
23.
In Chapter 2, the Commission examines how a proposed legislative
framework could provide for the practical day-to-day issues (such as
bill-paying from the missing person’s bank account) that arise when a person
remains absent for a relatively short period of time but where those left
behind should be in a position to take relevant, limited, action to administer
and manage the assets of the missing person. The Commission examines in this
respect legislation in place in Australia and Canada that permits a limited and
specific use of the property of missing persons, building on the existing
structure of their adult guardianship legislation. Arrangements that might be
put in place in that context could include the appointment of an interim
administrator of the missing person’s property (who could be a family member).
Such an arrangement would not have an impact on the civil law status of the
missing person (for example their status as living) or of those left behind
(for example, married). Pending the enactment of modern adult guardianship in
Ireland, the Commission concludes that such applications could be made to the
Probate Office of the High Court.
24.
In Chapter 3, the Commission discusses the details of the proposed
presumption of death legislation recommended in Chapter 1. This includes an
analysis of comparable laws in other countries, including the Presumption of
Death (Northern Ireland) Act 2009. The application of legislation
concerning presumed death involves a change in civil status for the missing
person and the consequences that flow from this (such as administration of the
estate and consequential effects for insurance purposes).
25.
The Commission draws important distinctions between the procedures that
it envisages would be involved in obtaining a declaration of presumed death,
depending on the category of missing person involved. In the case of a missing
person where the circumstances indicate that death is virtually certain, the
Commission considers that an application could be made to a coroner; this would
build on the, admittedly limited, powers already contained in the Coroners
Act 1962 to hold an inquest involving a missing person. On the other hand,
where the circumstances indicate that death is highly probable, the Commission
considers that an application should be made to the High Court, as is the case
at present.
26.
In Chapter 4, the Commission discusses the consequences of the return of
a missing person in respect of whom either the interim arrangements discussed
in Chapter 2 have been applied or in respect of whom a declaration of
presumption of death has been made in accordance with the proposals in Chapter
3. The Commission also discusses the international dimension, where persons go
missing outside Ireland and also where non-Irish nationals go missing in
Ireland. This also includes discussion of specific provisions to recognise the
Disappeared, those associated with the violence in Northern Ireland between the
1970s and the late 1990s.
27.
Chapter 5 contains a summary of the provisional recommendations made in
this Consultation Paper.
28.
This Consultation Paper is intended to form the basis
of discussion and therefore all the recommendations are provisional in nature.
The Commission will make its final recommendations on the subject of the civil
law aspects of missing persons following further consideration of the issues
and consultation. Submissions on the provisional recommendations included in this
Consultation Paper are welcome. To enable the Commission to proceed with the
preparation of the Report, which will contain the Commission’s final
recommendations in this area, those who wish to do so are requested to make
their submissions in writing to the Commission or by email to info@lawreform.ie
by 31 March 2012.
1
CHAPTER 1 categorising missing persons for civil law purposes
A Introduction
1.01
In this Chapter, the Commission begins in Part B
by examining the circumstances in which people go missing in order to arrive at
a general definition of missing persons for the purposes of the civil law,
which is the focus of this Consultation Paper. In Part C, the Commission
outlines the current law in Ireland concerning missing persons, which primarily
concerns the circumstances in which the missing person is either presumed to be
alive or presumed dead. The Commission then examines in Part D international
and comparative developments in this area. In the context of the presumption of
death, the Commission notes the importance of the 2009 Council of Europe
Recommendation on Missing Persons which provides a general framework around
which the law on presumption of death may be reformed. The Commission also
notes that many countries have, in addition to enacting legislation on
presumption of death, put in place specific provisions to deal with interim
financial issues for those left behind, such as limited administration of the
missing person’s assets and estate. These provisions operate quite separately
from the question of presumption of death. In Part E, the Commission sets out
its conclusions and provisional recommendations for reform on the question of
presumption of death and the separate issue of interim measures to administer
the estate and assets of the missing person.
B Defining a missing person for civil law purposes
1.02
The focus of this Consultation Paper is the
civil law aspects of missing persons, and in this Part the Commission examines
the circumstances in which people disappear in order to arrive at a general
definition of missing persons. As already noted in the Introduction to this
Consultation Paper, there are many reasons why people go missing, or disappear.
Where the circumstances are unexpected or unusual, it is often unclear
precisely what has happened, although as the figures referred to in the
Introduction indicate, over 99% of people reported missing will turn up alive
within a short time. As for the remaining small number of long-term missing,
their family and friends will often retain the hope that, even where there has
been no contact or word for many years, the missing person is still alive and
may return.
1.03
This hope is actually grounded in reality,
because the general literature on adult missing persons notes that, in a
substantial minority of such cases, the person may have “simply drifted away”
and subsequently had “no desire to renew contact” with those previously
associated with them.[21]
These people may be alive for many years, may never return home but may have
assets which need to be administered at some stage. The High Court decision in Re
Doherty[22]
is an example of this, where the State (with the assistance of the missing
person’s stockbrokers) applied to have him declared presumed dead after 42
years absence.
1.04
There have also been instances where a person goes missing, is
presumed dead, but who later turns up or is found. For
example, John Delaney was an Irish person who, while living in England, went
missing. His family, after numerous efforts to locate him, were told that his
remains had been discovered, and they had them cremated. John Delaney’s son
subsequently discovered, while watching a television documentary on
unidentified missing persons in England, that his father had suffered a head
injury which resulted in a loss of memory and he had ended up in a nursing home
and was still alive.[23]
1.05
As for missing children, there have also been a
number of high-profile cases internationally of children who have gone missing
and who have been found many years later, such as the American Jaycee Lee
Dugard and the Austrian Natascha Kampusch. For many families and friends, therefore, “missing” does not in any
sense equate with being “presumed dead”. The case of the young English girl
Madeline McCann who disappeared in Portugal in 2007 and was assumed abducted is
an example of a case where her parents continue to believe that she, too, will
one day be found.
1.06
In other instances involving an adult who
disappears, the circumstances of the person’s disappearance indicate that he or
she has committed suicide but the body has not been found. In a small number of
extreme cases, of course, the missing person may wish to use his or her
disappearance to personal advantage, by being able to make a claim on, for
example, a life insurance policy. There are well-known examples of where this
has been accompanied by leaving evidence of what turns out to be a faked
suicide. These instances pose clear difficulties for those left behind, and for
an insurance company that must decide whether to make a payment under the life
policy. In some instances, of course, this includes the need to determine
whether a missing person has committed suicide or whether the circumstances
indicate an attempt to defraud.
1.07
This was the situation in the disappearance in
1974 of the English MP John Stonehouse, who had faked his suicide in order to
avoid regulatory investigations into his businesses and other personal
financial problems. He had also taken out a life insurance policy shortly
before his disappearance in order to benefit his wife (who was unaware of his
plans, and who never made a claim on the policy). He was later found in Australia
and deported to England, where he was convicted of attempting to obtain money
by false pretences.[24] Similarly, in March 2002 the Englishman John Darwin disappeared
while canoeing, and appeared at the time to have drowned. His wife had reported
him missing and, in April 2003, an inquest into his disappearance[25] recorded an open verdict, and a death certificate was issued.
Arising from this, Mrs Darwin successfully made claims totalling £250,000 on a
life insurance policy and a mortgage protection policy on their family home. In
2007, John Darwin entered a police station in London claiming he had suffered
from amnesia for the previous 5 years. After further investigations, he and his
wife were later convicted of conspiracy to defraud.[26]
1.08
There have also, of course, many equally
highly-publicised cases where a disappearance has been followed by an extensive
but fruitless search for the missing person, leading ultimately to an
acceptance that he or she has died. For example, in 1986 an English estate
agent, Suzy Lamplugh, disappeared after she went to meet an unknown client. Her
body was never found but it was eventually accepted that she had been killed.
In 1993, her parents accepted that, 7 years after her disappearance, they
should apply to the English courts for a declaration that she was “presumed
dead”[27] and the English High Court made a presumed dead declaration in
1994. This is an example of applying the long-established rule of presumed
death after 7 years which, as discussed below, also applies in Ireland.
1.09
Major civil accidents have also resulted in the
death and disappearance of many people. In 2009, an Air France plane crashed
into the Atlantic off the coast of Brazil en route to Paris; it is generally
accepted that all 228 persons on board died (three of whom were Irish), but
that over 70 bodies will never be recovered. The 1977
collision between two planes on the ground in Tenerife (Canary Islands) also
led to the virtual impossibility of identifying some of the remains of those
who had boarded.
1.10
The outcome in terms of missing persons in such
civil accidents is also reflected in terrorist-type attacks, such as the “9/11”
attack on the Twin Towers of the New York World Trade Centre in 2001.[28] It is clear that thousands of people died in the attack on 11
September 2001, and many of them were identified, some from extremely limited
remains using the most-recent advances in DNA identification techniques.
Nonetheless, many people who died in the 9/11 attack will never be identified,
but a number have since been declared presumed dead under New York law. In Ireland, the violence connected with Northern Ireland between
the 1970s and late 1990s led to a particular category of missing persons known
as “the Disappeared”. This group of missing people are assumed to have been
kidnapped by paramilitary groups and murdered, in circumstances where their
bodies were hidden. At the time of writing (November 2011), seven of “the
Disappeared” have yet to be found.
1.11
The definition of a missing person should,
therefore, be sufficiently broad to include the varying circumstances in which
persons may go missing. This should include cases of persons who simply choose
to break contact with their family and close friends, as well as where the
person has gone missing in circumstances which indicate that death is a
probability. The definition must also be sufficiently sensitive to those left
behind. As previously noted, “missing” should not necessarily be equated with
“presumed dead.”
1.12
It is therefore useful to note firstly that a
missing person is a person whose whereabouts are unknown to those left behind.
In this respect, a missing person is:[29]
“someone who is absent from their accustomed
network of social and personal relationships to the extent that people within
that network define the absence as interfering with the performance by that
person of expected social responsibilities, leading to a situation in which
members of the network feel obliged to search for the missing person and may
institute official procedures to identify the person as missing.”
“In other words,
missing people are those observed to be missing from their normal patterns of
life.”
1.14
A second important element is that, as
there is often an absence of information regarding the missing person, it is
natural that those left behind have fears for the safety and well-being of the
missing person. Thus, James, Anderson and Putt note that, from a law
enforcement perspective, a missing person can be defined as:
“someone whose whereabouts is unknown, and
there are serious concerns for their safety and welfare.”[31]
1.15
This view is echoed by the English Association
of Chief Police Officers who define a missing person as:
“anyone whose
whereabouts is unknown whatever the circumstances of disappearance. They will
be considered missing until located and their well-being or otherwise
established.”[32]
1.16
Having regard to this overview, the Commission
has therefore concluded that, in the context of any legislative framework
concerning the civil law status of missing persons, a missing person should be
defined as a person who is observed to be missing from their normal patterns of
life, that those who are likely to have heard from them are unaware of their
whereabouts and that the circumstances of their being missing raises concerns
for their safety and well-being.
1.17
The Commission provisionally recommends
that, in the context of any legislative framework concerning the civil law
status of missing persons, a missing person should be defined as a person who
is observed to be missing from their normal patterns of life, that those who
are likely to have heard from them are unaware of their whereabouts and that
the circumstances of their being missing raises concerns for their safety and
well-being.
C The Current Law in Ireland on Missing Persons
1.18
In this Part, the Commission outlines the
current law in Ireland concerning missing persons, which primarily concerns the
circumstances in which the missing person is either presumed to be alive or
presumed dead. There is currently no generally applicable law concerning the
civil law of missing persons. The current law is confined to: (a) a limited
reference to missing persons in the Coroners Act 1962, and (b)
the common law presumption of life up to 7 years, and a corresponding
presumption of death after 7 years (both presumptions being rebuttable). This
common law 7 year rule has been recognised in specific, limited, circumstances
such as in section 18 of the Land and Conveyancing Law Reform Act 2009 in
connection with beneficiaries under a trust concerning land who are missing.
(1) Section 23 of the Coroners Act 1962
1.19
Section 23 of the Coroners Act 1962
provides:
“Whenever a coroner has reason to believe that a death has occurred
in or near his district in such circumstances that an inquest is appropriate
and that, owing to the destruction of the body or its being irrecoverable, an
inquest cannot be held except by virtue of this section, the Minister may, if
he so thinks proper, direct an inquest in relation to the death to be held by
that coroner or another coroner, and thereupon the coroner so directed shall
hold an inquest in relation to the death in like manner as if the body were
lying within his district and had been viewed by him.”
1.20
Section 23 of the 1962 Act thus provides for an
inquest to be held where a coroner believes that “a death has occurred”
in circumstances that indicate an inquest is appropriate, but where, because
the body has been destroyed or is irrecoverable, it would not be possible to
hold an inquest but for the provisions of section 23 itself. This refers to the
fact that, in general, inquests require the presence of the
deceased’s body, whereas section 23 of the 1962 Act is a clear exception to
this. Section 23 also provides that such an inquest can only be held by a
coroner where the Minister for Justice issues a direction to do so.
1.21
The Commission understands that, while section
23 of the 1962 Act has not been used on many occasions, it has been used in
cases where a body has become virtually completely destroyed by fire
(destruction) or has been lost at sea, for example in a fishing boat
(irrecoverable). For example, in 2011 an inquest was held under section 23 of
the 1962 Act. This arose from the disappearance of Alice Clifford over 31 years
previously when, in 1979, she went missing from a hospital aged 57.[33] At the time of her disappearance she suffered from dementia.
Despite extensive searches for her, she has never been found and her family
ultimately accepted that she had died. The family then requested that an
inquest be held under section 23 of the 1962 Act, and the Minister for Justice
consented to this. At the inquest, having heard Garda evidence and evidence
from family members, the coroner directed the jury to record an open verdict.
As a result, the coroner issued a declaration of death under the 1962 Act,
which recorded that the cause of death was undetermined. The Commission also
understands that, in recent years, a coroner was requested by the Minister for
Justice to conduct an inquest under section 23 of the 1962 Act in respect of a
person who had gone missing over a year previously from a long-term care
facility and whose body had not been found. The Commission also understands
that an inquest was scheduled to be held under section 23 of the 1962 Act but
that, before this occurred, the body of the person involved was found and that
the inquest proceeded under the usual procedures in the 1962 Act. The
Commission notes that section 23 of the 1962 Act is broadly similar to section
15 of the English Coroners Act 1988, discussed below.
1.22
The Commission understands that, in terms of the
procedure followed in cases under section 23 of the 1962 Act, a Garda report
concerning any criminal investigation is usually submitted to such an inquest.
The Commission notes that the important effect of any inquest held under the
1962 Act, including one held under section 23, is that a coroner issues a
declaration of death and that this, in turn, allows those left behind to
register the death under the Civil Registration Act 2004 in the Register
of Deaths and to obtain a death certificate. This means that all the
normal civil law consequences of death come into effect, such as the
administration and distribution of the person’s estate and assets, the
activation of any life insurance policy and consequential effects on any marriage
or civil partnership.
1.23
The Commission notes that section 23 of the 1962
Act clearly provides for inquests in some instances that concern missing
persons. While not specifically intended to deal with missing persons in
general, section 23 indicates that the Oireachtas intended to resolve the civil
law status of some missing persons.
1.24
The Commission also notes that the Coroners
Bill 2007, currently before the Oireachtas, proposes to modernise
and reform the law in this area in accordance with the 2000 Report of the
Coroners Review Group.[34] One of the significant reforms proposed in the 2000 Review Group
Report, and reflected in the 2007 Bill, would be the establishment of an Office
of Chief Coroner, who would have an important co-ordinating and general
guidance role in the development of a national Coroner Service.
1.25
In terms of an inquest being held in the
circumstances to which section 23 of the 1962 Act currently applies, the
Commission notes that section 44(2) of the 2007 Bill proposes to dispense with
the requirement for approval of the Minister of Justice to hold an inquest.
Section 44(2) of the 2007 Bill proposes that a coroner would be empowered to
hold such an inquest:
“if he or she has
reason to believe that the death has occurred in such circumstances that an
inquest is appropriate, even if the body has been destroyed or is
irrecoverable.”
1.26
Section 44(2) would, therefore, continue to
deal, albeit indirectly, with inquests concerning missing persons, as does
section 23 of the 1962 Act.
(2) Common law presumption of life up to 7 years and presumption of death after 7 years
1.27
The provisions of section 23 of the Coroners
Act 1962 are clearly very limited in scope, which is underlined by the rare
circumstances in which it has been invoked in respect of missing persons. More
significantly, the common law presumption of life up to 7 years and presumption
of death after 7 years allows those left behind to apply to the High
Court to have a declaration of presumed death after 7 years, and this may be
shortened if it is reasonable to conclude that the person is already dead. As
discussed below, this declaration of presumed death is limited to allowing the
deceased’s estate to be administered. It does not have the effect in law of a
death certificate, and therefore it does not, for example, have any effect on
any marriage or civil partnership.
1.28
The common law therefore currently provides that a person is
presumed to be alive for up to 7 years after going missing, and may be presumed
to have died after 7 years’ absence. As this common law presumption is
rebuttable, it also recognises that a presumption of death may be made before
the 7 years has elapsed, provided that there is sufficient circumstantial
evidence to justify this.[35]
1.29
The precise origin of the rule that death can be presumed after 7 years
is difficult to trace, but it was first set out in statutory form in section 1
of the Bigamy Act 1603 which provided a defence to a charge of bigamy if
either:
“those that were charged, married a second time
when the first spouse had been beyond the seas for seven years, or;
Those whose spouse had been absent for seven
years, although not beyond the seas, were not known to the former to be living
within that time.”
1.30
The presumption in the 1603 Act operated as a presumption of law;
that is to say, the presumption was applied automatically in the circumstances
described in the 1603 Act. The 7 year rule in the 1603 Act is now reflected in
section 57 of the Offences Against the Person Act 1861, which
contains a similar defence to a charge of bigamy.
1.31
A 7 year rule was also enacted in the English Cestui Que Vie
Act 1666 and a virtually identical Act, the Life Estates
Act 1695, was enacted by the pre-1800 Irish Parliament. Section 1 of the
1695 Act (like the 1666 Act) allowed a litigant to invoke a
presumption of death in connection with settled life estates where the beneficiary
of the settlement:
“shall remain beyond the seas, or elsewhere
absent themselves in this realm, by the space of seven years together,
and no sufficient and evident proof be made of the lives of such person or
persons respectively, in any action... the judges, before whom such action
shall be brought, shall direct the jury to give their verdict, as if the person
so remaining beyond the seas, or otherwise absenting himself, were dead.”
(emphasis added)
1.32
The Life Estates Act 1695 was one of over 150 pre-1922 Acts
repealed by the Land and Conveyancing Law Reform Act 2009, which derived from the Commission’s 2005 Report on the Reform and Modernisation of Land Law and Conveyancing Law.[36]
The 2009 Act consolidated into a single statutory code the pre-1922 Acts in
this area and also introduced significant reforms. While the 2009 Act repealed
the 1695 Act (and other pre-1922 Acts dealing with settled land), Part 4 of the
2009 Act (sections 18 to 22), enacted new provisions concerning trusts of land.
Section 18(5) to (7) of the 2009 Act also re-enacted the substance of the 1695
Act in modern form and provides:
“(5) Where, by reason of
absence from the State or otherwise, it remains uncertain for a period of at
least 7 years as to whether a person upon whose life an estate or interest
depends is alive, it shall continue to be presumed that the person is dead.
(6) If such presumption
is applied to a person but subsequently rebutted by proof to the contrary, that
person may bring an action for damages or another remedy for any loss suffered.
(7) In dealing with an
action under subsection (6), the court may make such order as appears to
it to be just and equitable in the circumstances of the case.”
1.33
Thus, in 2009, the Oireachtas re-enacted in section 18(5) of the 2009
Act, a 7 year rule concerning the presumption of death; and it is notable that
the Oireachtas provided that “it shall continue to be presumed
that the person is dead,” thus indicating a clear awareness that this
was not a new rule. It is also notable that section 18(6) of the 2009 Act
expressly provides for the possibility that, if the person who has been
declared dead later returns, he or she “may bring an action
for damages or another remedy for any loss suffered.” In such an action,
section 18(7) of the 2009 Act specifies that the court has a wide discretion to
make an order that is “just and equitable in the circumstances.” While an order
for monetary compensation is the most likely order to be made, section 18(7)
clearly envisages the possibility that ownership could be transferred back to
the returned missing person where this was “just and equitable.”
1.34
As the Commission notes in its comparative analysis in Part D, below, the
7 year rule is also found in the statutory social welfare codes of other
jurisdictions, such as England. The Social Welfare Consolidation Act 2005 does
not contain an explicit reference to the 7 year rule, but the Department of
Social Protection has published guidance on the widowed pension available under
Part 2, Chapter 18 of the 2005 Act.[37]
This guidance states that the pension may be payable in respect of a person
whose spouse is missing. The guidance states that:
“The following
matters can be taken into account in deciding whether a person who has
disappeared can be presumed dead:
·
The length of time elapsed since s/he was last
seen or heard of (if a person is missing for a period over seven years one can apply
to the courts for a declaration stating the person is dead).
·
The age and state of health of the person when
s/he disappeared
·
Whether s/he had any reason to disappear,
(financial embarrassment, threat of court proceedings, desertion from the Army)
·
Whether a person who would normally be in
contact if s/he were alive has made contact with spouse, if so ascertain how
long it has been since spouse was last seen or heard from.
·
The efforts the claimant has made to contact
his/her spouse.”
1.35
It is clear, therefore, that the 7 year rule has been adopted both
legislatively and administratively in Ireland.
1.36
The 7 year statutory rule in the Life Estates Act 1695 – as
recently confirmed by the Oireachtas in the Land and Conveyancing Law Reform
Act 2009 – was drawn on by way of analogy in the 19th Century
Irish decision McMahon and Ors v McElroy.[38] This was a case
in which the plaintiffs claimed ownership of land, which their brother had sold
to the defendant. After he had sold the land, the brother had left with his
wife and family for the United States of America. The brother had inherited the
land but this was subject to the condition that, if he died before his sisters,
it was to be divided between them. Nine years after their brother had left for
the United States, the plaintiff sisters applied to court to have him declared
presumed dead; if they were successful, the sale to the defendant would have
been declared invalid. The plaintiffs sought to rely on the 7 year rule alone,
and had not, for example, made any efforts to trace their brother or provide
any proof that he might have died. The case was heard in the Vice-Chancellor’s
Court (the equivalent of the High Court), and the Court refused to make the
declaration of presumed death. Chatterton V-C summarised the common law
presumption as follows:[39]
“Of [the
brother’s] death there is not any positive evidence, and I am called upon to
act entirely on the ordinary presumption as to which, and as to its operation
there can be no doubt – namely, that, as a general rule, a man’s death will be
presumed after an interval of seven years since he was last heard of. But this
is not an invariable rule, and it admits of exceptions; and indeed in any case
the Court in following the analogy of the Statutes,[40]
on which analogy the rule depends, is bound to consider the circumstances of
the particular case in order to see whether the presumption is rebutted, or
rather whether it fairly arises.”
1.37
It is clear, therefore, that the common law rule is a general but rebuttable
presumption which could be applied after 7 years absence. In the court’s view,
7 years absence in itself was insufficient to obtain a declaration of presumed
death, and that further evidence is required to establish, on the balance of
probabilities, that death had occurred before the presumption of death would
apply. The Court also accepted, however, that where such evidence is available,
the presumption of life up to 7 years may also be rebutted and that the court “is bound to consider the circumstances of the
particular case” as they arise.
1.38
As to the case itself, Chatterton V-C concluded
that, as the plaintiffs had made no inquiries as to their brother, they were
not entitled to a declaration of presumed death. He indicated, however, that he
would be prepared to re-hear the case if evidence was later produced that
demonstrated that (a) the brother had not been heard of “by those who might
reasonably expect to hear from him”, (b) if proper enquiries were made as to
his supposed place of residence in America and (c) he had disappeared from
there and could not be traced.
1.39
The McMahon case was cited as the main authority in this
area in the 1961 decision of the High Court in Re Doherty.[41]
In this case, Mr Doherty had purchased shares from his stockbrokers in 1919,
and had then gone to Australia. The stockbroker firm never
heard from him again, even though they had placed advertisements in Irish and
Australian newspapers looking for him or anyone who knew him to contact them.
After 40 years had passed, the Minister for Finance applied to have Mr
Doherty’s shares declared bona vacantia (“ownerless goods”) and
therefore, by default, the property of the State. In the High Court, Kenny J
accepted that, as the firm of stockbrokers had purchased the shares for Mr
Doherty, they could “reasonably be expected to have heard from him about
them during the last 40 years.”[42]
The Court thus applied the criteria in McMahon and Ors v McElroy to show
that the legal presumption of death could be applied after 7 years absence.[43] In
this light, and having regard to the fact that advertisements had been placed
in newspapers in Ireland and Australia, Kenny J granted an order declaring him
presumed dead. Kenny J was also prepared to make an order that Mr Doherty had
died intestate (that is, without making a will), unmarried and with no
next-of-kin.
1.40
It is clear that the mere absence of a person for 7 years is not
sufficient to establish that a person is to be presumed dead. Conversely, if the facts of a particular case demonstrate, a person may be
declared dead by the High Court before 7 years have passed. Thus, in In the Goods of Freytag[44] the circumstances
were that Mr Freytag had been staying in a hotel in Messina, Sicily and had
arranged a business meeting for the next morning, 28 December 1908. That was
the date on which a catastrophic earthquake destroyed most of Messina (this
remains one of the most devastating earthquakes in modern European history). Mr
Freytag did not turn up for his meeting (or any subsequent meeting ever again).
His Italian colleagues wrote to the family, outlining the circumstances and
indicating that attempts were made to locate him, but his body was never
located. Mr Freytag’s brother travelled to Messina and made extensive searches
for him, including advertising for his whereabouts, but again this proved
fruitless. The family applied to the High Court for an order of presumed death
and in the proceedings the letter from the Italian colleagues was produced, but
for some reason the advertisements were not. Notwithstanding this, Boyd J
granted an order that Mr Freytag should be presumed dead and that his brother
should be given liberty to apply for a grant of probate. In this case, the time
from Mr Freytag’s disappearance to the date of the order was only 3 months.
Similarly, in In the Goods of Inkerman Brown[45] the High Court declared Mr Inkerman Brown presumed dead just 2
months after the ship he was on had sunk.
1.41
A similar recent example
is of the Irish citizen Brendan Donegan who disappeared while attempting to
climb the Peruvian Andes in South America. His wife successfully applied to the
High Court for an order for administration of his estate on the basis that,
although his body had not been found, the evidence in this case was sufficient
to establish that his death was, in the language of the terminology used in
this Consultation Paper, virtually certain.[46]
1.42
In summary, at common law, where the person is missing for 7 years, and
they have not made contact with those likely to have heard from them, and
reasonable efforts have been made to locate them, they may be presumed dead. If
it can be proved on the balance of probabilities, however, that, as in In the Goods of Freytag,[47] the missing person has in fact died before 7 years has
passed, then a declaration of presumed death may be issued by the High Court. The
declaration of presumed death does not have the same automatic effects as the
issuing of a standard death certificate. It is, rather, a declaration of
limited power and generally is made to allow a grant of administration of the
person’s estate. This declaration does not, for example, affect or alter the
status of a marriage or civil partnership.[48]
1.43
Commenting on the case law in Ireland, Power sets out the following
detailed list of matters which should be included in any application for a
declaration of presumed death:[49]
1. The applicant should
provide the court with a watershed, a date that was the last time the supposed deceased was heard
from.
2. The applicant should
provide evidence tending to indicate that the individual is dead, such as:
(a) the circumstances surrounding
the disappearance,
(b) lack of communication with people who
were likely to
hear from
him or her, detailing the last
known correspondence or
communication, and
(c) the length of time since disappearance.
3. In most cases, unless
there are exceptional circumstances, the applicant should advertise for information concerning the
whereabouts of the supposed
deceased.
4. If possible, the
applicant should arrange
for the search-and-rescue authorities to confirm, by way of affidavit if
possible, that attempts were made to locate the individual, but were fruitless.
5. The applicant should set out the full background relating to the
disappearance, including the background as to the supposed deceased’s age and health. This should include mental health, where relevant, such
as suicidal tendencies.
6. The applicant should also
arrange for the details to be
corroborated as much as possible by a family member.
7. The applicant’s affidavit should set out the next-of-kin
entitled to distribution of his
assets on his death.
8. The applicant must aver
their belief that the
individual is dead.
1.44
The Commission notes that this comprehensive list of matters reflects
those referred to in the decisions of courts in other countries and jurisdictions
that apply a similar “presumed dead” rule, including in Australia and Canada.
The Commission now turns to examine the position in other countries, against
the background of the development of international standards in this area,
notably in the 2009 Council of Europe Recommendation on Missing Persons.
D International and Comparative Analysis
1.45
In this Part, the Commission examines international and
comparative developments concerning missing persons. In
approaching the categorisation of missing persons for the purpose of this
Consultation Paper, the Commission has had the benefit of the research that lay
behind the 2009 Council of Europe Recommendation on Principles Concerning
Missing Persons and the Presumption of Death.[50] In the context of the presumption of death, the Commission notes the
importance of the 2009 Council of Europe Recommendation on Missing Persons,
because this provides a general framework around which the law on the
presumption of death may be reformed. In terms of comparative analysis, the
Commission also notes that many countries have, in addition to enacting
legislation on the presumption of death, put in place specific provisions to
deal with interim financial issues for those left behind, such as limited
administration of the missing person’s assets and estate. These provisions
operate quite separately from the question of presumption of death.
(1) 1950 UN Convention on Missing Persons in World War II
1.46
In the aftermath of World War II (1939-1945), the United Nations
recognised the need for the international community to provide for situations
where a declaration of death is required for missing persons.[51]
The resulting 1950 UN Convention on the Declaration
of Death of Missing Persons[52]
facilitated issuing a declaration of death of missing persons who disappeared
during the years 1939-1945:
“under circumstances affording reasonable ground to infer that
they have died in consequence of events of war or of racial, religious,
political or national persecution”.[53]
1.47
The 1950 UN Convention is limited to deaths arising from war and does
not, therefore, apply to persons whose disappearance is connected with
non-military or related events referred to in the Convention, such as those who
go missing in earthquakes, civil air disasters or merchant shipping disasters.[54]
Such circumstances, where death is virtually certain, were dealt with in the
1966 Convention on Establishing Death (sometimes referred to
as the Athens Convention), which was developed by the International Commission
on Civil Status (ICCS) (the Athens Convention).[55] Ireland
is not a member state of the ICCS and is not a party to the 1966 Convention,
but the 1966 Convention formed the background to the 2009 Council of Europe
Recommendation on Missing Persons, which deals not only with circumstances in
which death is virtually certain but also the much wider situation where the
circumstances of the person being missing raises concerns for their safety and
well-being to the point where death is highly probable.
(2) 2009 Council of Europe Recommendation on Missing Persons
1.48
In 2009, the Council of Europe adopted a Recommendation
on Principles Concerning Missing Persons and the Presumption of Death.[56] In preparing this 2009 Recommendation, the Council of Europe’s
Working Party on Missing Persons noted the limited nature of existing
international law instruments concerning missing persons, including that the
1966 ICCS Convention on Missing Persons deals only with
situations where death is virtually certain.[57]
1.49
The Council of Europe’s Working
Party on Missing Persons thus noted that the 1966 Convention
would apply in situations such as the 1977 collision between two planes on the
ground in Tenerife (Canary Islands) or the 2001 attack on the New York “Twin
Towers”.[58] The Working Party also considered that the
1966 Athens Convention could also apply, for example, where a person is
a passenger on board a ship out at sea who was seen shortly before his or her
disappearance and who proves to have been suffering from psychological
problems:[59]
“The ship is of course
thoroughly searched, in vain, but only his or her bathrobe is found on a chair
on deck. When it further emerges that the stretch of sea in question is
shark-infested at the relevant time of year, and that the coastguard has
(therefore) failed to find a corpse, it can obviously be assumed that the
person went overboard (whether he or she jumped or was pushed) and that his or
her death can be regarded as certain.”
1.50
The Working Party also noted that the 1966 Convention
does not deal with situations where death is less than certain but is highly
probable, such as where a person is believed to be dead but whose body cannot
be recovered because of the inaccessibility or other natural condition of a
given area.[60] In other situations where missing persons
are believed to have died, which do not involve shipwreck, any other type of
accident, a disaster or warfare, the Working Party noted that:
“it is pointless and excessive to require the
survivors to wait for a specified period before launching a procedure to secure
a finding of death.”
1.51
The Council of Europe 2009 Recommendation thus
concluded that it was appropriate to put in place general principles that deal
not only with situations where death is virtually certain but also where death
is highly probable. The 2009 Recommendation therefore set out a number of
principles that should inform any legislation enacted in this area by the
Member States. The Commission has had regard to these principles in preparing
this Consultation Paper.
1.52
The 2009 Recommendation refers to three categories of
missing person in the context of presumed death. These are where:
“(a) death can be taken as certain; or
(b) it is reasonable to conclude that the death of the missing
person is likely; or
(c) although the missing person’s death is uncertain, his or
her disappearance cannot be reasonably attributed to any cause other than
death.”[61] (emphasis added)
1.53
For the reasons given below, the Commission
considers that, while these three categories are of considerable assistance in
delineating different cases of missing people, it may be more useful to
consider two general categories, where death is virtually certain and other
circumstances where it is highly probable that the person will not return.
1.54
In addition to the categorisation of missing
persons for the purposes of enacting laws on presumed death, the 2009
Recommendation sets out a number of detailed Principles for member states. For
completeness, these are set out in full here.
Principle 1 (cases where
a declaration of presumed death in respect of a missing person may be issued).
A declaration of presumed
death of the missing person may be issued if, in the light of all the
circumstances of his or her disappearance: (a) death can be taken as certain;
or (b) it is reasonable to conclude that the death of the missing person is
likely; or (c) although the missing person’s death is uncertain, his or her
disappearance cannot be reasonably attributed to any cause other than death.
Principle 2 (competent
authority).
An authority competent to
issue a declaration of presumed death with regard to a missing person
(“competent authority”) may be designated: (a) where the missing person was a
national of the state to which the competent authority belongs, or was
domiciled or had his or her habitual residence in its territory; (b) where the
person concerned was reported missing in the territory of that state; (c) where
the person concerned was reported missing during a voyage of a vessel or
aircraft registered in that state.
Principle 3 (requesting
person, body or authority).
A request for a
declaration of presumed death may be lodged by any person or body demonstrating
a legitimate interest or by an authority designated by the state for this
purpose.
Principle 4 (waiting
period for lodging the request).
4(1). Where, in the light
of all the circumstances, the death of the missing person can be taken as
certain, the lodging of the request mentioned under Principle 3 should
preferably be possible without a waiting period.
4(2). Where the
circumstances of disappearance of the missing person are such that it is
reasonable to conclude that his or her death is likely, the time which must
have elapsed from the disappearance, or from the receipt of the last news that
the person was alive, for lodging the request should preferably be one year at
the most.
4(3). Where the death of
the missing person is uncertain, the time which must have elapsed from the
disappearance, or from the receipt of the last news that the person was alive,
for lodging the request should preferably be seven years at the most.
Principle 5 (date and
hour of presumed death).
The date and, if
possible, the hour of presumed death of the missing person should be determined
by referring to any evidence or indication relating to the circumstances of the
case.
Principle 6 (effects).
6(1). By operation of
law, the declaration of presumed death should have all the legal effects of
death.
6(2). Nevertheless,
member states may make such exceptions to this provision as they consider
strictly necessary. These exceptions should be limited but may cover matters
such as marriage, registered partnerships, legal affiliation, property rights
and inheritance rights and should aim at maintaining a fair balance between the
interests of those concerned, including the person whose presumed death is
declared.
Principle 7 (return of
the person whose presumed death has been declared).
7(1). Should the person,
in respect of whom the declaration of presumed death has been issued, return,
or where there is information establishing that he or she is still alive,
member states should prescribe measures aiming at annulling the decision
declaring this person’s death.
7(2). A request for
annulment of a declaration of presumed death may be lodged by the person whose
presumed death has been declared or by any person or body demonstrating a
legitimate interest, as well as by an authority designated by the state for
this purpose.
7(3). Member states may
make provision for the protection of persons who may be adversely affected by
the annulment of the decision.
Principle 8 (transcription
of decisions)
A decision declaring the
presumed death of the missing person or a decision on annulment, referred to in
Principles 2 and 7 respectively, should be transcribed in the relevant
registers of the state where such a decision was pronounced.
Principle 9 (procedural
aspects)
1. Access to proceedings
and their duration should balance the concerns and needs of all those having a
legitimate interest in the declaration of presumed death, as well as of the
missing person. This should also apply to proceedings concerning annulment.
2. When publicity
concerning the search for a missing person is deemed necessary during the
course of proceedings regarding a declaration of presumed death, this should be
carried out by any appropriate means, including new technologies, and taking
into account the financial situation of the requesting person.
1.55
As already mentioned, the Commission considers
that the principles set out in the 2009 Council of Europe Recommendation
provide an extremely helpful template against which to consider reform of the
law in this area.
(3) The approach in Civil Law and Common Law countries to Missing Persons
1.56
The preparation of the 2009 Council of Europe Recommendation was
influenced by the existence of long-established legislation on missing persons
in many Council of Europe member states, notably those with a Civil Law
tradition. In the early 19th Century, many Civil Law states, such as
France and Germany, introduced specific statutory provisions dealing with the
civil law status of missing persons. Thus, the Napoleonic Code Civil
Francaise of 1804 contained detailed provisions on the issue, which was
directly related to the need to deal with the consequences of French soldiers
going missing for many years in wartime (which the UN, as mentioned above,
dealt with in the aftermath of World War II). As discussed below, other Civil
Law states outside Europe, such as Canada, have been influenced by this
historical inheritance.
1.57
In Scotland, whose legal system reflects its mixed Civil Law and Common
Law history, the Presumption of Death (Scotland) Act 1977 permits a declaration of presumed death for missing persons who have disappeared in
circumstances where either it is reasonable to believe they have died, or due
to the 7 year absence of the person the death of the person may be presumed.
The Scottish 1977 Act has been mirrored substantially in Northern Ireland in
the Presumption of Death Act (Northern Ireland) 2009. The
enactment of the Northern Ireland 2009 Act was influenced, in part, by
the need to address the civil law status of the “Disappeared”, those who
went missing
in Northern Ireland in the violent conflict that took place between the
early
1970s and the late 1990s. As noted in the Introduction to this
Consultation
Paper, the Commission points out that the legacy of that conflict has
also
affected this State, since a number of people either went missing in the
State
or are presumed to have been killed in Northern Ireland or this State
and were
later buried in this State.
1.58
There has also been growing recognition in a number of Common Law states
that the law on missing persons must cater, as has been the case in many Civil
Law states since the 19th Century, for situations where the missing
person is not to be presumed dead. For example, in the Australian state of
Victoria[62]
and the Canadian province of Ontario,[63]
adult guardianship and mental capacity legislation has incorporated specific
provision for limited administration and management of the property of missing
persons so that day-to-day practical matters, such as the ongoing payment of
bills, can be dealt with by those left behind. In the remainder of this Part,
the Commission discusses these comparative legislative developments.
(4) Northern Ireland and Scotland
1.59
In Northern Ireland, as in this State, there is
implicit provision for holding an inquest in connection with a missing person.
Section 14 of the Coroners (Northern Ireland) Act 1959 provides:
“Where the Attorney
General has reason to believe that a deceased person has died in circumstances
which in his opinion make the holding of an inquest advisable he may direct any
coroner (whether or not he is the coroner for the district in which the death
has occurred) to conduct an inquest into the death of that person, and that coroner
shall proceed to conduct an inquest in accordance with the provisions of this
Act (and as if, not being the coroner for the district in which the death
occurred, he were such coroner) whether or not he or any other coroner has
viewed the body, made any inquiry or investigation, held any inquest into or
done any other act in connection with the death.”
1.60
It is notable that section 14 of the 1959 Act is
more broadly drafted than the equivalent section 23 of the Coroners Act 1962
and thus, at least implicitly, could be applied to all cases of missing
persons, not merely those whose bodies have, as the 1962 Act provides, been
“destroyed” or are “irrecoverable.” Nonetheless, it appears that section 14 of
the 1959 Act has not been used in connection with cases where the “Disappeared”
have remained missing, and the only inquests into such persons have been
“standard” inquests where the bodies have been recovered.[64] Indeed, the absence of a suitable process for obtaining a
declaration of presumed death for the “Disappeared” was one of the key reasons
given in the 2008 Consultation Document for the enactment of what became the Presumption
of Death (Northern Ireland) Act 2009.[65]
1.61
The Presumption of Death (Northern Ireland)
Act 2009 largely reflects the content of the Scottish Presumption of
Death (Scotland) Act 1977. Both Acts deal with situations where those left
behind wish to bring a claim for a declaration of presumed death of the missing
person. They do not deal with arrangements for dealing with the property of
missing person falling short of a presumption of death.
1.62
The enactment of the Presumption of Death (Northern
Ireland) Act 2009 was preceded by a 2008 Consultation Paper[66] and 2008 Report[67] published by the Department of Finance and Personnel. The
Consultation Paper and Report recommended reform of the law to allow for a
procedure to obtain a declaration of presumed death for missing persons who are
presumed dead.[68]
1.63
In terms of the type of persons that should be
included in the reformed presumption of death law, the Report noted that:
“the wider group of missing persons will likely
include the young and the elderly, men and women, people who are married with
children as well as those who are single and childless. There will always
remain, however, a number of missing persons who do not return for some reason.
The majority may wish simply to break contact with family and friends. However,
some of those who are reported missing will have died either at the time of
their disappearance or sometime thereafter either as a result of self-harm,
accident or foul play.”[69]
1.64
The 2009 Act that resulted from the 2008 Report
therefore deals with the small, but appreciable, number of missing persons who
are not found. In categorising these missing persons, section 1 of the Presumption
of Death (Northern Ireland) Act 2009 provides for the making of a
presumption of death order:
“[w]here 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.”
1.65
Section 1(a) of the 2009 Act provides for
situations where the missing person is believed to have disappeared in
circumstances that indicate that he or she may have died. Section 1(b) of the
2009 Act provides for situations where the 7 year absence, coupled with a lack
of information regarding the person, raises the presumption that the person may
no longer be alive. In both circumstances, a presumption of death order may be
issued. This order permits the standard consequences of death to arise, such as
the grant of administration of the estate or affecting the status of a marriage
or civil partnership.
1.66
Similarly in Scotland, section 1(1) of the Presumption
of Death (Scotland) Act 1977 provides for a declaration of presumed death
for a missing person: “[w]here a 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.” Therefore, as in
Northern Ireland, the Presumption of Death (Scotland) Act 1977 provides
for the categories of where it is believed that the missing person has died.
(5) England and Wales
1.67
As in Ireland, there is currently no general legislation dealing with
missing persons in England and Wales, although as discussed below the
introduction of presumption of death legislation along the lines enacted in
Scotland and Northern Ireland is currently under consideration. At present,
therefore, the law in England is broadly comparable to the position in Ireland,
including comparable provisions in the English Coroners Act 1988 and the
common law presumption of death after 7 years.
1.68
In terms of the categorisation of missing persons who may be
presumed dead, section 15 of the English Coroners Act 1988 allows
for the issuing of a death certificate in situations where the body of the
missing person is either destroyed by fire or cannot be recovered. Section 15 provides:
“(1) Where a
coroner has reason to believe—
(a) that a death has occurred in or near his district in such
circumstances that an inquest ought to be held; and
(b) that owing to the destruction of the body by fire or
otherwise, or to the fact that the body is lying in a place from which it
cannot be recovered, an inquest cannot be held except in pursuance of this
section,
he may report the facts
to the Secretary of State.
(2) Where a report is made under subsection (1) above, the
Secretary of State may, if he considers it desirable to do so, direct a coroner
(whether the coroner making the report or another) to hold an inquest into the
death.”
1.69
This corresponds closely to section 23 of the
Coroners Act 1962, discussed above (and it may be noted that, in this
respect, both are more narrow in scope than section 14 of the Coroners
(Northern Ireland) Act 1959). As in Ireland, this has been used in the
context of missing persons. For example, when Englishman John Darwin
disappeared while canoeing in March 2002, and appeared at the time to have
drowned, and after his wife had reported him missing, in April 2003 an inquest
into his disappearance under section 15 of the 1988 Act. Having heard evidence
of the police investigations into the matter, which at that stage were
consistent with his death, the coroner recorded an open verdict, and a death
certificate was issued. Arising from this, Mrs Darwin successfully made claims
totalling £250,000 on a life insurance policy and a mortgage protection policy
on their family home. In fact, as already discussed, Mr Darwin had faked his
suicide with his wife’s knowledge. In 2007, he entered a police station in
London claiming he had suffered from amnesia for the previous 5 years. He and
his wife were later convicted of conspiracy to defraud.[70]
1.70
Clearly, the Darwin case was an instance of a
fraudulent attempt to take advantage of section 15 of the 1988 Act and the
consequent financial benefits of obtaining a death certificate by deceit.
Equally clearly, in circumstances where fraud is not involved, section 15 of
the 1988 Act provides an efficient method for obtaining a death certificate for
those left behind. It has been reported that, in England, section 15 of the
1988 Act is employed less than 10 times annually to deal with missing persons.[71]
1.71
As in Ireland, in situations where the Coroners Act 1988 is not
applicable, the common law presumption of death allows for a declaration of
presumed death to be issued where the person has been missing for 7 years. As
already noted, the common law presumption may be rebutted so that a declaration
of presumed death may be made where it can be shown that the missing person has
in fact died before the end of 7 years. As also already noted, the declaration
of presumed death does not result in the issuing of a death certificate, but
usually is limited to an order allowing the administration of the missing
person’s estate to occur.
1.72
The general approach taken by the courts in Ireland to the common law
presumption (discussed above) is also applied by the English courts. Thus, in
the English High Court decision Re Watkins,[72] Harman J stated:
“there is no “magic” in the mere fact of a
period of seven years elapsing without there being positive evidence of a
person being alive. It is, generally speaking, a matter in each case of taking
the facts as a whole and of balancing, as a jury would, the respective
probabilities of life continuing and having ceased.”
1.73
This was cited with approval by Sachs J in another English High
Court decision, Chard v Chard.[73] Echoing the approach of the Irish High
Court in McMahon and Ors v McElroy,[74] discussed
above, Sachs J held that the presumption will apply if:
(a)
there is no acceptable affirmative evidence of a person alive at some time
during the 7 year period, and
(b)
persons likely to have heard from the absentee had not done so during that
period, and
(c)
due enquiries were made as to the whereabouts of the missing person.
1.74
It appears therefore that, under English common law, a declaration of
presumed death does not affect or alter the validity of the missing person’s
marriage. As already noted, if a missing person’s spouse remarries after 7
years, the Offences Against the Person Act 1861 provides a full defence
to a bigamy charge even if the missing person returns. This does not, however,
affect the civil law status of the marriage. It is likely that this also
reflects the position in this State. Legislation has been enacted in England to
deal specifically with this matter. Section 19 of the Matrimonial Causes Act
1973 and
section 37 of the Civil Partnership Act 2004 provide, respectively,
for the dissolution of a marriage or civil partnership where there are
reasonable grounds for believing that the missing person is probably dead,
including after 7 years absence. No equivalent provisions have been enacted in
Ireland.
1.75
Similarly section 8 of the English Social Security Act 1998 empowers the Secretary of
State for Social Security to take into account that a spouse of a claimant may
be presumed dead in relation to a range of benefits. A specific provision is
also made by section 3 of the Social Security Administration Act 1992 which deals with
late claims for bereavement benefit where it is difficult to establish death.[75]
1.76
It is therefore clear that English law, through a combination of the
common law presumption and the legislative provisions mentioned, has some limited
recognition for categories of missing persons where they disappear in
circumstances that indicate their death may have occurred.
1.77
In 2011, a UK Houses of Parliament All-Party Parliamentary Group on Runaway and Missing Children and
Adults began a consultative process that may lead to a more complete reform of
the law on missing persons.[76] This has resulted in the Justice Select Committee’s
Inquiry into presumption of death legislation in England and Wales. At the time
of writing (November 2011) this has not yet led to final recommendations, but
it is anticipated that the Committee will recommend the introduction of a
legislative framework along the lines of the 1977 Scottish and 2009 Northern
Ireland Acts already discussed, which would permit those left behind to obtain
a presumption of death certificate where it can be established that the missing
person has died.
(6) Australia
1.78
In Australia, the law provides for missing persons who disappear in
circumstances that may indicate that they have died. As is the case in Ireland
and the United Kingdom, this is provided for using the common law presumption
of death after 7 years. This common law presumption allows those left behind to
obtain a grant of administration concerning the missing person’s estate where
the person is presumed dead.
1.79
Legislation in New South Wales, Victoria and the Australian Capital
Territory also makes provision for the category of persons who go missing in
circumstances where no presumption of death is possible. Under these laws,
those left behind may obtain an interim administration order, which permits an
administrator to manage the day to day affairs of the missing person, but has
no effect on the status of the missing person.
(a) Presumption of Death
1.80
In Australia, there is no generally applicable
legislation for missing persons who are believed to have died but the common
law presumption of death also operates. In the leading decision of the High
Court of Australia in Axon v Axon,[77] Dixon J stated:[78]
“If, at the time when the issue of whether a
man is alive or dead must be judicially determined, at least seven years have
elapsed since he was last seen or heard of by those who in the circumstances of
the case would according to the common course of affairs be likely to have
received communication from him or to have learned of his whereabouts, were he
is living, then, in the absence of evidence to the contrary, it should be found
that he is dead.”
1.81
As in Ireland, therefore, the position in
Australia is that the presumption of life up to 7 years is rebuttable and a
presumption of death may be made where death is established the balance of
probabilities before the expiration of 7 years absence. Thus, in Re
Bennett,[79] where evidence was shown that a diver disappeared after becoming
disorientated during a dive off the coast of South Korea, a declaration of
presumed death was made 2 years after the incident.
1.82
In circumstances where no such evidence exists,
an application can be made after 7 years absence in order to have a
person declared presumed dead. This was the case in Re Hills,[80] where the Supreme Court of South Australia declared presumed dead a
man who had schizophrenia and who had been missing for 13 years. The medical
evidence was that, when not on his medication, it was likely that he would have
committed suicide during the 13 years.[81]
(b) Administration of the assets of missing persons
1.83
In New South Wales,[82]
Victoria[83]
and the Australian Capital Territory,[84]
adult guardianship laws (which broadly correspond to the proposed mental
capacity legislation due to be enacted in Ireland)[85] have been
extended to include specific provision to allow those left behind to administer
some assets of missing persons. In these states and territories, the
legislation allows for the appointment of an administrator to manage the
affairs of a person, where this person is missing and is not believed to have
died. These arrangements have no effect on the civil status of the missing
person, such as their married status, and do not amount to a declaration of
presumed death.
1.84
The intention of these legislative provisions is to permit a
limited use of property where there is a demonstrated need for decisions to be
made and it is in the best interests for an administrator to be appointed to
make these decisions regarding the affairs of the person while the person
remains missing. The appointment of an administrator is most likely to arise in
situations where the person is missing without proof of death, but it could
also be used even where death is virtually certain or probable, particularly if
those left behind do not wish to obtain a declaration of death or presumed
death.
1.85
In this regard, the legislation treats certain missing persons in the
same way as persons whose capacity may be limited in the sense that it provides
for a process to manage their property. In enacting in effect an additional
graft onto the existing adult guardianship legislation, Australian law allows
for the appointment of administrators to the estate of missing persons, if:
“(a) it is not known whether the person is
alive; and
(b) reasonable efforts have been made to find
the person; and
(c) for at least 90 days, the person has not
contacted–
(i) anyone who lives at the person's
last-known home address; or
(ii) any relative or friend of the person with whom the person is likely to
communicate.”[86]
1.86
The administrator is appointed initially for a 2
year period, but this may be extended for a further 2 years.[87] Any person may apply for an order to be appointed as an
administrator, but in general the Court will appoint someone who is close to
the missing person, for example, a relative or close friend. For example, in a Victorian
case Rosewall (Guardianship),[88] the father of the missing person was deemed an appropriate
administrator in the circumstances. The Court will make this decision having
regard to the wishes of the missing person, in so far as they can be
ascertained.
1.87
The advantage of a law dealing exclusively with cases of missing
persons, who are not believed to have died, is that those left behind are not
required to wait for up to 7 years before obtaining an administration order to
deal with the affairs of a missing person.
(7) Canada
(a) General Category of Presumed Death and Common Law Presumption
1.88
In six of Canada’s provinces,[89]
legislation provides that a person who is missing may be presumed dead if:
“[u]pon application... the court is satisfied that–
(a) a person has been absent and not heard of
or from by the applicant, or to the knowledge of the applicant by any other
person, since a day named;
(b) the applicant has no reason to believe that
the person is living; and
(c) reasonable grounds exist for supposing that
the person is dead.”[90]
1.89
The legislation in these provinces does not
expressly delineate between the categories where a missing person may be
presumed dead. As the following examination of its application shows, however,
the courts are conscious of the separate categories of where death is virtually
certain and where death is either likely or the person is long-term missing, so
that no other explanation other than the death of the person is plausible.
1.90
In Kotai v Queen of North (The)[91] the Court granted a declaration of
presumed death in circumstances where a couple were last seen on board a sinking
ship which had run aground. In Re Burgess,[92]
the subject of the application was a member of the Hell’s Angels Motorcycle
Club. The Court heard evidence from the police and the wife of the presumed
deceased that indicated foul play was a factor in the disappearance.[93] The Court, in granting the declaration, stated:
“The evidence satisfies me that no person has
seen Rick Burgess since January 7, 2002... While the evidence of events after
Mr. Burgess’ disappearance are by their nature hearsay, they are in the
circumstances the best evidence available and can only lead to the conclusion
that the ‘dark side’ of Mr. Burgess’ life caught up with him and the only
reasonable inference is that his life has been ended by ‘person unknown.’”[94]
1.91
In Re Cyr,[95]
the Supreme Court of British Columbia noted, with some reluctance, that
previous case law[96] had taken the view that any “reasonable grounds” which existed for
supposing that the person was dead was to be judged on the balance of
probabilities. The Court stated:
“While there is a reasonable basis for
believing that Cyr [the subject of the application] is dead, there is also some
basis for concluding that he has chosen to disappear. I am unable to find on a
balance of probabilities that he is dead.”
1.92
In effect, this means that where the person has
been missing for less than 7 years, the legislation will only apply where death
is either virtually certain or, at the very least, probable. In Re Cyr,
the Court also added that the applicant could still wait until 7 years had
passed from the time of her husband’s disappearance and then bring a claim
under the common law presumption of death.[97]
(b) Ontario
1.93
Section 2 of the Ontario Declarations of Death Act 2002 explicitly provides for two categories where death
can be presumed. The first category, in section 2(4) of the 2002 Act, applies
to persons who disappear “in circumstances of peril”:
(a) the individual has disappeared in
circumstances of peril;
(b) the applicant has not heard of or from the
individual since the disappearance;
(c) to the applicant’s knowledge, after making
reasonable inquiries, no other person has heard of or from the individual since
the disappearance;
(d) the applicant has no reason to believe that
the individual is alive; and
(e) there is sufficient evidence to find that
the individual is dead.”
1.94
This provides for situations where it is
believed to be virtually certain that the missing person has died.
1.95
The second category, in section 2(5) of
the 2002 Act, places the common law 7 year presumption on a statutory footing:
“(5) This subsection
applies if,
(a) the individual has
been absent for at least seven years;
(b) the applicant has
not heard of or from the individual during the seven-year period;
(c) to the applicant’s
knowledge, after making reasonable inquiries, no other person has heard of or
from the individual during the seven-year period;
(d) the applicant has
no reason to believe that the individual is alive; and
1.96
In Sherman v National Life Assurance Co. of Canada[99] the insurance company applied for a declaration to nullify an
earlier court declaration of presumed death. The company presented evidence
that the subject of the declaration, Mr Sherman, had actually gone into hiding
due to investigations being carried out by the Metropolitan Toronto Fraud
Squad, amongst others, into his involvement in questionable stock transactions
and fraudulent banking transactions.[100] The insurance
company also presented evidence that he had been seen in public during the
alleged 7 year period of absence.[101] The Court also
heard evidence that the police had believed that, at the time of the
disappearance, one person had wanted to kill the “presumed deceased.” It was
also claimed that the presumed deceased had close associations with well-known
criminals and violent persons.[102] In affirming the
original ruling, Steel J stated:
“[having] carefully considered the evidence in
the context of whether Sherman was dead or in hiding... the judge was obviously
satisfied that the presumption had not been rebutted. He relied on the
presumption because he was satisfied that, after a careful and diligent search,
Sherman had not been seen or heard of in seven years and his acceptance of the
claimant's firm conviction that Sherman was dead. After reviewing the evidence
I cannot say that his conclusion was erroneous.”[103]
1.97
It is clear, therefore, that Ontario differentiates more clearly
through sections 2(4) and 2(5) of the 2002 Act between situations where death
is virtually certain and where death is probable due to the
circumstances in which the person disappeared, or as a result of a long-term
absence.
(c) Quebec and Alberta
1.98
The legislative provisions in both Quebec and Alberta do not explicitly
differentiate between the various categories of missing persons who disappear
in circumstances that indicate that they may have died. For example, Article 92
of the Quebec Civil Code states that:
“A
declaratory judgment of death may be pronounced on the application of any
interested person, including the Public Curator or the Minister of Revenue as
provisional administrator of property, seven years after disappearance.
It may also be pronounced before that time
where the death of a person domiciled in Québec or presumed to have died there
may be held to be certain although it is impossible to draw up an attestation
of death.”
1.99
Article 92 allows for a general presumption of
death to arise after seven years, should the person go missing without trace.
This is qualified in the second part of Article 92, so that proof may be given
that a person may be deemed presumed dead before the expiration of the seven
year period, where death is virtually certain and where
death is probable due to the circumstances in which the person disappeared, or
as a result of a long-term absence.
1.100
Similarly, in Alberta, under section 94 of the
Surrogate Rules:
“The court may permit a person to swear to
the death of another person if there is no direct evidence of the death but
there is evidence from which the death can be presumed.”[104]
1.101
In Comey v Manufacturing Life Insurance Co.[105] the Alberta High Court stated that
there were “no preconditions” in bringing such an application, provided that
there is sufficient evidence on the balance of probabilities that death
occurred. In assessing this balance, the court stated it would take into
account the following non-exhaustive factors:
“a. the time, location, and circumstances of
the disappearance
b. the extent and nature of post-disappearance
searches
c. a prior history of fraud
d. the presence or absence of a motive for the
missing person to remain alive but disappear
e. the time between a life insurance policy
being obtained and the subsequent disappearance
f. facts suggesting the disappearance was a
consequence of foul play
g. abandonment of valuable property.”[106]
1.102
In Re Vos Estate,[107] the subject of the application disappeared after going for a walk.
It was shown that he had suffered from Alzheimer’s disease at the time of his
disappearance and had no known motive for disappearing. The Court was
satisfied, taking everything into account on the balance of probabilities, that
the subject of the application had disappeared in circumstances that indicated
that he had most probably died. The Court therefore issued a presumption of
death order.
1.103
The law in Alberta, as in Quebec, provides for
categories of where the missing person may be presumed dead. Although Article 94
of the Quebec Civil Code and the legislative provisions in Alberta do not
explicitly differentiate between the various categories of missing person who
may disappear in circumstances that indicate that he or she may have died, the
case law discussed illustrates that the Courts are aware of the need to
distinguish between the different categories.
(d) Administration of the affairs of Missing Persons
1.104
In a number of Canadian provinces, the law provides for the category of
missing persons for whom it is not believed have died. For example, in Ontario[108] and Quebec,[109] provision is
made for a scheme similar to those in New South Wales, Australian Capital
Territories and Victoria, discussed above. These allow for a tutor (in Quebec)
or a committee (in Ontario) to be appointed to manage the affairs of a missing
person or “absentee.” The object of the legislation is to make
sure that the estate of an absentee is administered and not left to waste.[110]
“a person who, having had his or her usual
place of residence or domicile in Ontario, has disappeared, whose whereabouts
is unknown and as to whom there is no knowledge as to whether he or she is
alive or dead.”[111]
1.106
The intention of the 1990 Act is, broadly, similar to those in the
Australian states and provinces already discussed. The 1990 Act permits a
limited use of property where there is a demonstrated need for decisions to be
made and it is in the best interests of the missing person for an administrator
to be appointed to make these decisions regarding the affairs of the missing
person while the person remains missing.
E Conclusions and Provisional Recommendations
(1) Categorising missing persons in connection with presumed death
1.107
The Commission’s examination in this Chapter of the approach to
the categorisation of missing persons illustrates that, for the purposes of
making determinations of presumed death, there are two principal categories of
missing person: those where death is virtually certain, and those where it is highly probable that the person will not return due to the
circumstances in which the person disappeared.
1.108
The first category, where death is virtually certain, would include the
following:
(a) missing after a civil accident or natural disaster, where a person was seen jumping from the railing of a boat while at sea or where, as in In the Goods of Freytag,[112] the person can be directly linked by circumstantial evidence to a catastrophic natural disaster; or
(b) missing after a violent or terrorist incident: where the circumstantial evidence clearly indicates that a person is almost certain to have died, for example, in the “9/11” attack on the New York World Trade Centre (“Twin Towers”) in 2001.
1.109
The second category, where it is highly probable that the person is
dead, would include the following:
(a) missing after disappearance in dangerous circumstances, for example, where a climber was last seen on a treacherous mountain, or in the case of “the Disappeared” where, in view of probable connection with a violent act and after a sufficient lapse of time it is probable that death has occurred;
(b) missing for a long period in other circumstances that indicate a loss of life, for example, where the person does not disappear in dangerous circumstances, but it can be established, on the balance of probabilities, that death is likely because for example they have been missing for a considerable period (long-term missing).
1.110
The Commission considers that, in connection with both categories, any
person applying for a declaration of presumed death must establish on the
balance of probabilities that death should be presumed. This will involve
presenting the type of information that would currently be prepared under the
common law rules and case law already discussed. As the Commission has already
noted, in Ireland the following detailed list of matters should be included in
any application for a declaration of presumed death:[113]
1. The applicant should
provide the court with a watershed, a date that was the last time the supposed deceased was heard
from.
2. The applicant should
provide evidence tending to indicate that the individual is dead, such as:
(a) the circumstances surrounding
the disappearance,
(b) lack of communication with people who
were likely to
hear from
him or her, detailing the last
known correspondence or
communication, and
(c) the length of time since disappearance.
3. In most cases, unless
there are exceptional circumstances, the applicant should advertise for information concerning the whereabouts
of the supposed deceased.
4. If possible, the
applicant should arrange
for the search-and-rescue authorities to confirm, by way of affidavit if
possible, that attempts were made to locate the individual, but were fruitless.
5. The applicant should set out the full background relating to the
disappearance, including the background as to the supposed deceased’s age and health. This should include mental health, where relevant, such
as suicidal tendencies.
6. The applicant should also
arrange for the details to be
corroborated as much as possible by a family member.
7. The applicant’s affidavit should set out the next-of-kin
entitled to distribution of his
assets on his death.
8. The applicant must aver
their belief that the
individual is dead.
1.111
This approach is consistent with the specific factors set out in
the Canadian case Comey v Manufacturing Life Insurance Co,[114] namely:
(a) the time, location, and circumstances of
the disappearance
(b) the extent and nature of post-disappearance
searches
(c) a prior history of fraud
(d) the presence or absence of a motive for the
missing person to remain alive but disappear
(e) the time between a life insurance policy
being obtained and the subsequent disappearance
(f) facts suggesting the disappearance was a
consequence of foul play
(g) abandonment of valuable property.[115]
1.112
The Commission considers that this two category approach to missing
persons would involve a greater degree of clarity by comparison with existing
law in Ireland. The Commission accepts that, to some degree, section 23 of the Coroners
Act 1962 currently provides for some aspects of those who are missing and
where death is virtually certain, but it is limited to some categories only and
does not expressly deal with missing persons in general terms. The Commission
also acknowledges that the common law rule concerning 7 years absence provides
a clear and reliable indicator of where death is either certain or is highly
probable and where significant remedies can be put in place to provide for
those left behind.
1.113
The Commission considers, however, that there is a strong argument for
putting in place a clear statutory framework that would set out the
circumstances in which such remedies may be obtained. The Commission is
conscious in this respect that the State is required to implement the key
elements of the 2009 Council of Europe Recommendation on Missing Persons, and
that a statutory framework would meet this obligation. The Commission also
notes that, in the context of the recent history of Ireland and the position of
the “Disappeared,” it would be appropriate to have in place a statutory
framework that is consistent with the essential elements of the Presumption
of Death (Northern Ireland) Act 2009.
1.114
The Commission provisionally recommends that, for the purpose of
the civil law aspects of the law of missing persons, a statutory framework
should be in place which would provide for a presumption of death in respect of
two categories of missing persons. The first category, where the circumstances
of their disappearance indicates that death is virtually certain, would deal
with persons who go missing in circumstances (whether arising from a civil
accident or arising from a violent incident) where their death is virtually
certain given the circumstances of the disappearance. The second category,
where both the circumstances and length of the disappearance indicate that it
is highly probable that they have died and will not return, would apply where
the disappearance occurred in dangerous circumstances or in other circumstances
in which loss of life may be presumed.
1.115
The Commission provisionally recommends that, where a person
applies to have a presumption of death order, the following detailed list of
matters should be included in a sworn affidavit:
1. The date when the supposed
deceased was last heard from.
2. Specific evidence tending to indicate that
the individual is dead, such as:
(a) the circumstances surrounding
the disappearance,
(b) lack of communication with
people who were likely to hear from him or her, including last known correspondence or
communication, and
(c) the length of time since
disappearance.
3. Except in exceptional circumstances, the
applicant should advertise for information concerning the whereabouts of the supposed deceased.
4. Where possible, the applicant
should
arrange
for search-and-rescue authorities to confirm, by way of affidavit if
possible, that attempts were made to locate the individual, but were fruitless.
5. The applicant should set out the full background relating to
the disappearance, including the background as to the supposed deceased’s age and health
(including mental health).
6. The applicant should also
arrange for the details to be corroborated as much as possible by a family member.
7. The applicant’s affidavit should set out the
next-of-kin entitled to distribution of his assets on his death.
8. The applicant must aver
their belief that the individual is dead.
1.116
The Commission also provisionally recommends that, in
determining whether a presumption of death is to be ordered, all the
circumstances surrounding the disappearance must be taken into account,
including the following:
(a) the time, location, and circumstances of
the disappearance
(b) the extent and nature of
post-disappearance searches
(c) a prior history of fraud
(d) the presence or absence of a motive for
the missing person to remain alive but disappear
(e) the time between a life insurance policy
being obtained and the subsequent disappearance
(f) facts suggesting the disappearance was a
consequence of foul play and
(g) abandonment of valuable property.
(2) Missing persons and interim administration procedures
1.117
Under current law, there is no clear process available under
which those left behind may deal with the immediate practical issues that may
arise when a person goes missing. This often means that those
left behind suffer a range of financial impacts. Thus:
“Families ‘left behind’ by adults may have
severe practical problems, since bank accounts of a family breadwinner may
become inaccessible and it may prove difficult to claim social security
benefits... Practical and financial problems also continue and may worsen as
immediate resources are exhausted.”[116]
1.118
In this context, the Commission has had the
benefit of discussions with various interested persons leading up to the
preparation of this Consultation Paper. The general view expressed in these
discussions is that reform of the law on missing persons should not only
provide for a declaration of presumed death but also for interim remedies to deal
with practical and legal problems that arise when a person goes missing. Those
left behind have stated that they wish to ensure that financial matters are
properly dealt with, though without having to make the difficult leap to
thinking that the missing person may be dead.
1.119
For example, in the aftermath of the
disappearance of Australian man Daniel Rosewall (discussed above), who had
numerous credit card bills and loan repayments due, his father noted that:
“It would be a huge thing for us to apply for
Daniel to be declared deceased. We think he’s out there somewhere. What if he
turns up? As Daniel’s parents, we can’t do much more to find Daniel. What we
can do is look after his affairs otherwise they will end up in tatters.”[117]
1.120
The practical difficulties expressed to the
Commission in these discussions closely mirror those described in research
carried out in England with families of missing persons.[118] The case of Englishman, Paul Read, who disappeared in July 2008 after
a night out with friends, provides a similar example. Even though his remains
were found in September 2010, his family encountered numerous problems in the
intervening two and a half year period in their attempts to rearrange financial
arrangements to reflect the fact that Paul had gone missing. His wife noted
that, as she had lost Paul as a source of income, she could not afford the
mortgage and car loan repayments. She also noted that she could not sell the
house or car that were held in both of their names.[119]
1.121
Against this backdrop, numerous submissions have
been made to the UK Houses of Parliament All-Party Parliamentary Group on
Runaway and Missing Children and Adults as to the need for reform. In his
submission to the All-Party Committee, Peter Lawrence, the father of missing
person Claudia Lawrence, noted that it was very difficult to get the relevant
companies to engage with him as to his daughter’s mortgage and car insurance payments.
He noted that some form of administration order would be of great benefit to
those left behind who find themselves in similar circumstances.[120]
1.122
The Commission has already noted that in a number of states, such as
Australia and Canada, there is a recognition that interim remedies are needed
to deal with immediate issues, such as paying utility bills or rent and
mortgage payments; and that this is especially the case in circumstances where
it would not be possible to establish that it is even highly probable the
person is dead, let alone that he or she is virtually certainly dead.
1.123
The Commission considers that, given the importance of dealing with
such immediate issues, it is necessary to have in place an appropriate
framework to deal with this situation. The Commission notes that in Australia
and Canada these situations have been dealt with by adding specific provisions
for the limited administration of the property of the missing person into its
existing legislation on adult guardianship. The equivalent of such legislation
in Ireland would be the proposed mental capacity legislation which is scheduled
for publication in Ireland in 2012.[121]
1.124
The Commission accepts that, by contrast with Australia and Canada,
Ireland does not yet have a modern mental capacity and adult guardianship
legislative framework but, having regard to the commitment that such
legislation is well advanced and is to be published in 2012, it would be
appropriate to consider this model for the purposes of dealing with this aspect
of missing persons. The Commission has therefore concluded that it would be
appropriate to include provision in the proposed mental capacity legislation
for limited administration of the property of the missing person in order to
pay essential bills. This would also have the advantage for those left behind
of not being required to apply for a declaration of presumed death (which given
the proofs required would in any event be unlikely to be granted).
1.125
The Commission is conscious that the full
implementation of the proposed mental capacity legislation may take some years
to occur, and that some suitable interim arrangement should be put in place in
the meantime. The Commission considers in this respect that an application to
appoint an interim administrator to manage the affairs of a missing person is,
broadly, comparable to an application for a limited grant of administration of
the estate of a person. The vast majority of such applications are currently
dealt with through the Probate Office of the High Court. The Commission is
aware that the Probate Office deals with many such probate applications from
personal applicants and has established procedures to facilitate this in an
informal and inexpensive manner. Bearing this in mind, the Commission has
provisionally concluded that, pending the enactment of mental capacity
legislation, an application to appoint an administrator to manage the affairs
of a missing person, amounting to a limited grant of administration of the
estate, could be made to the Probate Office. An applicant would furnish the
necessary documentation to the Probate Office, who would then decide whether an
administrator should be appointed, subject to an appeal to the High Court.
1.126
The Commission provisionally recommends that it would be
appropriate to include provision in the proposed mental capacity legislation
for limited administration of the property of a missing person, in particular
in circumstances in which it could not be established that a presumption of
death order could be made. The Commission also provisionally
recommends that, pending the enactment of mental capacity legislation, an
application to appoint an administrator to manage the affairs of a missing
person, amounting to a limited grant of administration of the estate, could be
made to the Probate Office. An applicant would furnish the necessary
documentation to the Probate Office, who would then decide whether an
administrator should be appointed, subject to an appeal to the High Court.
CHAPTER 2 INTERIM ADMINISTRATION of A Missing Person’s PROPERTY
A Introduction
2
2.01
In Chapter 1, the Commission provisionally recommended that legislation
should be enacted along the lines of comparable provisions in Australia[122] and Canada[123] which would
provide for an application to appoint an administrator to manage the affairs of
a missing person on an interim basis. The Commission now turns to examine in
this Chapter the details of such legislation. In Part B, the Commission
discusses the relevant legislation in Australia and then turns in Part C to
discuss the comparable legislation in Canada. In Part D, the Commission sets
out its conclusions and provisional recommendations for reform.
B Australian Legislation on Interim Administration
2.02
As already noted in Chapter 1, in New South Wales,[124] Victoria[125] and the
Australian Capital Territory,[126]
adult guardianship legislation (the equivalent of the proposed mental capacity
legislation which is scheduled for publication in Ireland in 2012)[127] has been
extended to provide for an administrator to be appointed to manage the affairs
of a person where this person is missing and is not presumed dead.
(1) When can an application be made?
2.03
The granting of a declaration and order to have an administrator
appointed to manage the affairs of a missing person is a serious matter. This
was made clear by Campbell J in the New South Wales case Re Gell:
“The fact that the declaration and order is made when the
missing person is not in a position to present evidence or tell the Court his
or her views about the appointment, and that the declaration and order can
irretrievably affect his or her property, means that the Court is unlikely to
be satisfied by slight proofs.”[128]
2.04
An application for the appointment of an administrator to manage
the affairs of the missing person is determined according to a two-stage
process. Firstly, the person must fall into a category of a “missing person”, which is discussed below. Second, in
addition to this:
“ordinarily evidence would be needed of the
circumstances in which the person has disappeared, including his or her
condition during the period immediately before the disappearance, and material
which casts light on any motive the person may have had to disappear, or on any
other possible cause there might be for his or her disappearance.”[129]
2.05
Thus, the mere fact that a person has not
been seen by people who would ordinarily see him or her is not enough to show
that that person is a “missing person” because this would also be consistent
with the person being on a holiday. The Court stated that more context would be
needed to conclude that the person is indeed a “missing person.”[130]
(2) The detailed criteria
2.06
Section 60AB(2) of the NSW Guardianship and
Administration Act 1986 provides in this respect, without defining
what constitutes a “missing person”, that a number of criteria be met:
“(a) it is not known whether the person is
alive; and
(b) reasonable efforts have been made to
find the person; and
(c) for at least 90 days, the person has not
contacted–
(i) anyone who lives at the person’s
last-known home address; or
(ii) any relative or friend of the person
with whom the person is likely to communicate.”[131]
(a) ‘Not known if person is alive’
2.07
In relation to (a) above — where there is no knowledge of whether the
person is alive — the courts have held that this refers to those:
“...people who ordinarily would be expected to
have seen, or to have heard from, or of, the person. Given that missing people
are ordinarily reported to the police, who then come under an obligation to
find out what they can about the whereabouts of the person, in practice that
will usually include also that part of the police force whose task it is to
investigate the whereabouts of missing people.”[132]
2.08
The New South Wales Supreme Court has held that
the results of police inquiries “go a long way and perhaps all the way” in
proving this. Evidence of a physical search in the area where the person
disappeared, and failure to find, or hear news of the finding of the dead body
may also be appropriate in the circumstances to satisfy the requirement.[133]
2.09
Therefore, in order to satisfy this criterion, it must be shown that
individuals such as the missing person’s close family or friends do not know if
the missing person is alive. In addition, the Courts may look to evidence that
the missing person’s unit of the local police force could not establish if the
missing person is alive or dead.
(b) ‘Reasonable Efforts to Locate the Missing Person’
2.10
As to “reasonable efforts” to find the person, the courts require
evidence of what efforts have been made to locate the person.[134] For example, as
it is the police who often have the requisite knowledge and expertise in
locating missing persons, in Re Gell[135]
the Court was of the opinion that “it would be a most unusual
case for the Court to be satisfied that a person was missing if the police had
not been informed of the disappearance.” In Re Flint[136] the Court accepted as evidence the fact
that the mother of the missing person had made a report to the police, with the
police following the usual procedure in tracing missing persons. The Court also
took into consideration that the disappearance of the person, and the concerns
of his parents, had received widespread media circulation. Finally, the Court
accepted evidence that the Salvation Army (who have experience in dealing with
missing person cases) were requested by the missing person’s family to search
for him.[137]
2.11
The question of what constitutes “reasonable efforts”
was also discussed in Re Gell,[138] where the Court held
that, while it depends on the particular facts of the case, in general taking
actions such as seeking publicity, going to places where the missing person
frequented and registering with the relevant missing person organisations would
be taken as “reasonable efforts.”[139] In providing
evidence that reasonable efforts have been made to locate the missing person,
the Court in Re Gell stated that the tender of an original letter from
the missing person’s unit of the relevant police force which stated that search
activities had been unsuccessful would be sufficient.[140]
(c) ‘any relative or friend of the person with whom the person is likely to communicate’
2.12
The Australian courts have noted that the purpose of this provision is
to identify the people with whom the person would be likely to communicate with
if he or she were indeed alive, had been missing, and had access to ordinary
means of communication.[141]
It is not meant to require an applicant prove that all relatives or friends of
the missing person have not heard from the missing person since the
disappearance occurred.
2.13
The court will also be conscious of situations where the person may
deliberately disappear and therefore no contact would be made with those likely
to have heard from the missing person. If the court believes that this is the
case arising from the particular facts, it acknowledges that this proof is
based on the assumption that the person did not deliberately chose to
disappear. Therefore, evidence to satisfy this proof may not be required by the
Court before granting the appointment of an administrator.[142]
2.14
Secondly, once the legislative definition of “missing” is satisfied,
they must also meet further criteria. For example, the following factors that
must be met are outlined by the Guardianship and Administration Act 1986 in
Victoria:
“(a) [the missing person] usually resides in
Victoria; and
(b) while the
person is missing there is, or is likely to be, a need for a decision in
relation to the person’s financial matters or property; and
(c) it is in the
best interests of the missing person for a person to be appointed to administer
their estate while they are missing”[143]
2.15
Paragraph (c) indicates that an administrator
will only be appointed if it is in the best interests of the missing person;
and this is also the case in New South Wales. By contrast, the corresponding
provision in the Australian Capital Territory, the Guardian and Management
of Property Act 1991, requires that the missing person’s interests
would be “significantly adversely affected” if a guardian is not
appointed.[144] It could be argued that the Australian Capital Territory demands a
higher standard of need on behalf the missing person’s interests to be first
demonstrated, than the “best interests” standard currently in place in Victoria
and New South Wales.
(3) How is an application made?
2.16
When an application is made for an administrator
to be appointed to manage the affairs of a missing person, the relevant Court
or Tribunal will then have to decide who is to be appointed as the
administrator. In general, the best interests of the missing person will be
taken into account, in addition to ensuring that there are no conflicts of
interests between the missing person and the administrator.[145] For example in the Guardian and Administration Act 1986, the
administrator must be “suitable.” Section 47(2) of the Guardian and
Administration Act 1986 provides that the Victoria Civil and Administrative
Tribunal determines this on the basis of:
“(a) the wishes of the proposed represented
person, so far as they can be ascertained; and
(b) the compatibility of the person proposed
as administrator with the proposed represented person and with the guardian (if
any) of the proposed represented person; and
(c) whether the person was a member of the
Tribunal as constituted for a proceeding under this Act.”
2.17
In addition, the Court or Tribunal must ensure
that there are no conflicts of interest between the administrator and the
missing person. Therefore, in general a person who is close to the missing
person and is trusted to act in the best interests of the person, for example,
a relative or close friend, is appointed as the administrator.
2.18
On the bringing of an application to have an
administrator appointed, notice is generally provided to persons who may have
interest in the affairs of the missing person. For example, the Guardianship
and Administration Act 1986 requires that notice is provided to the
following persons:
“(a) the nearest relative available of the
person in respect of whom the application is made;
(b) the primary carer (if any) of the person
in respect of whom the application is made;
(c) the Public Advocate;
(d) any guardian of the person in respect of
whom the application is made;
(e) any person who has advised the Tribunal
of an interest in the person in respect of whom the application is made or in
his or her estate.”[146]
2.19
In terms of bringing an application to have an
administrator appointed, a form is filled out by the
applicant which specifies the need for the administrator to be appointed. In
Victoria a statement of the fortnightly income and expenditure of the missing
person and a list of assets and liabilities is also provided. In New South
Wales, while there is no specific rule that requires that an affidavit outlines
the nature and amount of the property of the missing person, or the nature of
the relevant business affairs, the courts have stated that it would be:
“hard to see how the Court could be satisfied
that it was in the best interests of the missing person to have a manager
appointed of the estate, or whether it was more in the best interests of that
person to have a manager appointed over the whole, rather than some part of the
estate, without being informed of those matters in at least broad outline.”[147]
2.20
Therefore in presenting an application to have
an administrator appointed to manage the affairs of a missing person, the Court
must be satisfied that the administrator would act in the best interests of the
missing person. It is also generally accepted that the administrator will
provide a statement of the assets and liabilities of the missing person to the
Court, so they can best assess what part, if not the whole, of the missing
person’s affairs is to be managed.
(4) What can an administrator do?
2.21
The purpose of the legislation is to permit a limited use of the
property of a missing person after 90 days absence. Under the legislation, an
administrator is appointed to manage the affairs of the missing person. In the
Victoria and the Australian Capital Territory, the
administrator is appointed initially for a two year period, but this may be
extended for a further two years.[148] The powers given to the
administrator are the same as the powers as if it is the missing person making
the decisions.[149]
2.22
In granting the order to appoint an administrator, the relevant
authority must specify the exact powers given to the administrator. It must
also state whether all, or part only, of the interests of the missing person’s
interests are to be managed.[150]
The kind of decisions that the administrator may make must be in the best
interests of the missing person. In the Australian Capital Territory, the Guardianship
and Management of Property Act 1991 outlines a number of key decision
making principles that the administrator must adhere to:
“(a) the protected person’s wishes, as far as they can be worked
out, must be given effect to, unless making the decision in accordance with the
wishes is likely to significantly adversely affect the protected person’s
interests;
(b) if giving effect to the protected person’s wishes is likely
to significantly adversely affect the person’s interests—the decision-maker
must give effect to the protected person’s wishes as far as possible without
significantly adversely affecting the protected person’s interests;
(c) if the protected person’s wishes cannot be given effect to
at all — the interests of the protected person must be promoted;
(d) the protected person’s life (including the person’s
lifestyle) must be interfered with to the smallest extent necessary”.[151]
2.23
These general principles, while explicitly stated in the relevant
legislation of the Australian Capital Territory, are also provided for by the
legal obligation placed on the administrator to act in the best interests of
the missing person in New South Wales and Victoria.[152] The Australian courts have held that the best interests can be
interpreted as:
“[the] preservation and maintenance of the
property of the missing person, and dealing with the business affairs of the missing
person in a way best calculated to preserve, maintain, or possibly enhance the
assets of the missing person.”[153]
2.24
In more specific terms, the administrator will be granted the power to
make the decisions, which may include the following:
·
The execution of documents other than a will.
·
Collect, receive and recover income
·
Pay any debts and settle any demand against the
estate
·
With consent, sell, exchange, partition or
convert property
·
Pay a sum for maintenance of the missing
person’s dependants[154]
2.25
Should it be discovered that the missing person
is alive, dead, or presumed dead, the relevant court is under an obligation to
remove the administration order on the property. [155]
(5) Case study: Re Rosewall
2.26
In Re Rosewall (Guardianship)[156] Mr Rosewall, who disappeared in January
2010 after failing to attend an appointment,[157]
was declared a missing person in December 2010 under Part 5A of the Victoria Guardianship
and Administration Act 1986 Act.
2.27
In the aftermath of Mr. Rosewall’s disappearance
a number of practical problems arose. Firstly, his parents were aware of a
number of debts that had fallen due, in particular one debt which would accrue
substantial interest if not paid in the near future.[158]
Secondly, Mr. Rosewall had rented an apartment with his girlfriend. However,
after his disappearance, his girlfriend could not afford to pay the rent on her
own. She had since terminated the lease on the property. In light of this, Mr.
Rosewall’s parents made numerous unsuccessful attempts to redirect their son’s
post from the property, so that they could remain aware of any outstanding
debts. However, without proof of their son’s death, Australia Post would not
redirect the post, due to its privacy policy.[159]
In summary, as the Court noted:
“Understandably, his family is concerned that
there may be outstanding debts that they are not aware of. They are anxious to
ensure that all Daniel’s financial affairs are kept in order while he is
missing.”[160]
2.28
In the hearing at the Victorian Civil and
Administrative Tribunal, Mr. Rosewall’s parents submitted evidence that a
number of bills had become overdue, with substantial interest about to accrue
on one in particular. They also demonstrated the difficulty in attempting to
redirect their son’s post. In accepting this evidence, the Tribunal also
considered the family solicitor’s evidence that addressed the efforts that had
been made by the police, combined with numerous police media releases.[161]
2.29
The Tribunal, taking this into consideration,
held that it was in the best interests of the missing person to appoint an
administrator and appointed Mr. Rosewall’s father. The Tribunal permitted the
following kind of decisions to be made with regard to Mr. Rosewall’s assets:
“(a) accessing represented person’s bank
accounts and applying funds for the purposes of payment of represented person’s
debts
(b) authorising the deposit of any monies owed
to the represented person (including any tax refund payable for the year
2009-10) into the represented person’s bank account/s
(c) effecting a mail redirection with Australia
Post of the represented person’s mail to the administrator’s address
(d) arranging the sale of the represented
person’s motor vehicle, a Ford Falcon BAXR6 sedan, 2003, and depositing the
proceeds into the represented person’s account
(e) arranging the sale of the represented
person’s washing machine and depositing the proceeds into the represented
person’s account.”[162]
2.30
The Tribunal also ordered that Mr. Rosewall’s
father submit a Financial Statement and Plan and the annual examination of the
accounts of the missing person.[163]
2.31
The Rosewall case provides a clear
example of the detailed elements of the Australian approach to the appointment
of administrators to manage the affairs of a missing person. The order is only
granted where, due to a present or likely need for a decision to be made in
relation to a missing person’s financial matters, it is in their best interests
to appoint an administrator. The case also highlights that it is usually close
family members or friends who bring the application, and are subsequently appointed
as administrators to act in the best interests of the missing person.
C Canadian Legislation on Interim Administration
2.32
In Ontario[164]
and Quebec,[165]
provision is made for a similar scheme under which a tutor (in Quebec) or a
committee (in Ontario) is appointed to manage the affairs of a missing person
or “absentee.” The object of the legislation is to ensure that
the estate of an absentee is administered and not left to waste.[166]
2.33
Under the Quebec Civil Code, “any interested person,”
including the Public Curator or a creditor of the absentee, may apply for the
institution of tutorship to the absentee.’[167] By contrast with
this broad provision, the Absentees Act in Ontario provides for a more
specific list of persons:
“(a) the Attorney General;
(b) any one or more of the next of kin of the
alleged absentee;
(c) the person to whom the alleged absentee is
married;
(d) the person with whom the alleged absentee
was living in a conjugal relationship outside marriage immediately before the
absentee’s disappearance;
(e) a creditor; or
(f) any other person.”[168]
2.34
The Ontario courts have interpreted the term “next of
kin” to mean the mother, father, children, brothers, sisters, spouse or common
law spouse of the missing person. In the absence of any of them, “next of kin”
would also comprise those entitled to share in the estate of the missing person
were he or she to die intestate.[169] Pursuant
to section 1 of the Absentee Act 1990 an absentee is defined as:
“a person who, having had his or her usual
place of residence or domicile in Ontario, has disappeared, whose whereabouts
is unknown and as to whom there is no knowledge as to whether he or she is
alive or dead.”[170]
2.35
Unlike the position in Australia, this is a
broader definition of missing person, with no minimum time period of 90 days
absence before an application can be brought. However, the courts have
interpreted this definition by setting a number of limits, including that the
Act is not intended to cover cases in which a person,
for his or her own purpose, conceals him or herself by faking suicide.[171]
2.36
The legislation also requires that a due and
satisfactory inquiry be carried out into the disappearance of the person if
they are to be deemed an absentee. The courts assess whether this has been
satisfied by asking a number of questions, such as those posed by Quinn J in Kamboj
v Kamboj,[172] where a man called Ashwani Kamboj
disappeared:
“(a) Does Ashwani have next of kin or other
relatives or friends in India? If so, do they have relevant information?
(b) Are the applicants the only children of
Ashwani?
(c) Does Ashwani have other next of kin or
relatives in Ontario or in the United States? If so, do they have relevant
information?
(d) Does Ashwani have friends or acquaintances
in Ontario or in the United States? If so, do they have relevant information?
(e) Are there restaurants, bars or other
establishments in Niagara Falls or elsewhere in Ontario that Ashwani
frequented? If so, have inquiries been made for relevant information?
(f) Did he belong to any clubs, religious,
community or social organizations? If so, have inquiries been made for relevant
information?
(g) Did he have a family doctor? If so, have
inquiries been made for relevant information?
(h) Has a notice been published in a local newspaper,
containing his picture and soliciting information in respect of his whereabouts?
(i) Did his disappearance attract media
attention?
(j) Did Ashwani have a will?
(k) Did he have any creditors? If so, do they
have relevant information?”[173]
2.37
In assessing whether a due and adequate inquiry
was made into the disappearance of Mr. Kamboj, the Court noted that the
affidavit filed by the applicants was a mere “regurgitation” of the police
report, and that little inquiries had been made as to ascertain the whereabouts
of Mr. Kamboj.[174] The Court therefore rejected the claim for an appointment of an
administrator to manage the affairs of the missing man.
2.38
In addition to satisfying the Court as to due
and satisfactory inquiries, the applicant must also prepare and deliver to the
Court a management plan for the property of the missing person. This plan
details the income, expenditure, assets and liabilities of the missing person
and how the committee plans the property will be used to pay maintenance,
bills, and other outgoings arising from the estate. In considering this, the
Court will assess the applicant’s ability to manage the property in line with
the proposed management plan. For example in Re Quang Lu,[175]
the Court held that:
“While the applicant's evidence does not
disclose her experience in managing property, the value of Mr. Lu’s known
property is modest and the property consists of assets typically managed by
families. The applicant’s plan to manage the property to pay for their
daughter’s living and educational expenses reflects the evidence that
historically Mr. Lu fully provided for his daughter's financial needs.
Consequently, I am satisfied that an order should go appointing the applicant
as committee of the property of Mr. Lu for the purpose of securing its custody,
and ensuring its due care and management in accordance with the terms of the
management plan filed with the application.”[176]
2.39
As under the Australian law discussed above, if
the absentee is found to be dead, presumed dead or alive subsequent to the
tutor or committee being appointed, the Court must then revoke the
administration order on the estate.[177] However, unlike
in Australia (where there the administrator is appointed for an initial two
year period, and may be reappointed for up to two years after that)[178] in both Quebec and Ontario the relevant legislation does not
provide for a maximum appointment period for the administrator.
D Conclusions and Provisional Recommendations
(1) When can an application be made?
2.40
As discussed above, there are two approaches to
providing a definition of missing persons. In Australian legislation, a more
specific definition is provided, while in Quebec and Ontario, a broader
definition is provided for in the relevant legislation. The Commission is of
the opinion that, while both approaches have a similar result, the Australian
approach is more desirable as it provides more clarity in terms of those
applying for orders under the proposed law.
2.41
The Commission also considers that the
appointment of an administrator to manage the affairs of a missing person
should not be granted easily. The Commission agrees in this respect with the
need to meet the type of criteria set out by Quinn J in the Canadian case Kamboj
v Kamboj[179]
(a) Does the missing
person have next of kin or other relatives or friends in his home place? If so,
do they have relevant information?
(b) Are the applicants the only relatives of the
missing person?
(c) Does the missing person have other next of kin
or relatives abroad? If so, do they have relevant information?
(d) Does the missing person have other close friends
or acquaintances? If so, do they have relevant information?
(e) Are there restaurants, bars or other
establishments in the locality or elsewhere that the missing person frequented?
If so, have inquiries been made for relevant information?
(f) Did the missing person belong to any clubs,
religious, community or social organizations? If so, have inquiries been made
for relevant information?
(g) Did the missing person have a family
doctor? If so, have inquiries been made for relevant information?
(h) Has a notice been published in a local newspaper,
containing the missing person’s picture and soliciting information in respect
of his or her whereabouts?
(i) Did the disappearance attract media
attention?
(j) Did the missing person have a will?
(k) Did the missing person have any creditors?
If so, do they have relevant information?
2.42
The Commission has accordingly concluded, and
provisionally recommends, that an order to appoint an administrator to
administer a missing person’s property may only be made where: (a) it is not known whether the person is alive; (b) reasonable
efforts have been made to find the person; and (c) for at least 90 days, the
person has not contacted (i) anyone who lives at the person’s last-known home
address or (ii) any relative or friend of the person with whom the person is
likely to communicate.
2.43
The Commission provisionally recommends that
an order to appoint an administrator to administer a missing person’s property
may only be made where: (a) it is not known whether the person is alive; (b)
reasonable efforts have been made to find the person; and (c) for at least 90
days, the person has not contacted (i) anyone who lives at the person’s
last-known home address or (ii) any relative or friend of the person with whom
the person is likely to communicate.
(2) Who can make an application to be appointed as an administrator?
2.44
In Australian law any person may apply to be an
administrator,[180] but in general the Court will appoint someone who is close to the
missing person, for example, a relative or close friend. The courts will make
this decision with regard to the wishes of the missing person, so far as they
can be ascertained. A similar broad provision is provided for in the Quebec
Civil Code, where “any interested person, including the Public Curator or a
creditor” may apply to obtain an administration on the affairs of the missing
person.[181]
2.45
The Commission notes that the persons who are most likely to apply are spouses,
civil partners, children, parents, or even close friends of the missing person.
Other parties such as insurance companies, employees, or the State may also
have a legitimate interest in bringing an application to have the missing
person’s estate administered. Indeed, it is clear that this group of people are
also likely to be involved in any application to have a person declared
presumed dead. In that respect, the Commission’s discussion in this section
also deals with that part of the reform proposals (which are discussed in
Chapter 3, below).
2.46
Under current law, the common law presumption of 7 years absence
requires that there has been no communication by the missing person with those
who are likely to have heard from them. This would include family members and
close friends, but has also been interpreted broadly by the courts to include a
missing person’s stockbrokers.[182]
2.47
The Council of Europe 2009 Recommendation on Missing Persons states
that “any person demonstrating a legitimate interest” should be permitted to
bring an application for a presumption of death order and that this would
include “the spouse or registered partner, persons with an
inheritance-related interest, or another financial interest, in the declaration
of legal presumption of death, such as creditors.”[183]
2.48
The comparable term “interested persons” has been adopted by many
countries. This focuses on the “interest” of the party bringing the application
in the matters of the missing person who is alleged to have died. For example,
in Northern Ireland, a spouse or civil partner[184] or a person with
“sufficient interest”[185]
may bring an application.[186]
A similar provision for spouses is provided for in Scotland, supplemented by a
provision for “any interested person” to bring an application.[187] This approach is
also reflected in New Brunswick,[188]
while in Quebec, the Civil Code provides:
“A declaratory judgment of death may be
pronounced on the application of any interested person, including the Public
Curator or the Minister of Revenue as provisional administrator of property,
seven years after disappearance”[189]
2.49
Thus the Quebec civil code explicitly acknowledges that the State,
through the Public Curator or Minister for Revenue, may have a legitimate
interest in bringing a presumption of death order against a missing person.
This can also be seen in the Irish case Re Doherty. Here the State,
through the Minister for Finance, was found to have a legitimate interest under
the doctrine of bona vacantia,[190]
which comes into effect when a person dies intestate. This allowed the State
sufficient interest to bring a presumption of death application concerning Mr.
Doherty.
2.50
In Ontario, the Declaration of Death Act 2002
provides for a non-exhaustive list of “interested persons” who can apply for a
presumption of death order, including:
“(a) a person named as executor or estate
trustee in the individual’s will,
(b) a person who may be entitled to apply to be
appointed administrator of the individual’s estate on intestacy,
(c) the individual’s spouse,
(d) the individual’s next of kin,
(e) the individual’s guardian or attorney for
personal care or property... ,
(f) a person who is in possession of property
owned by the individual,
(g) if there is a contract of life insurance or
group insurance insuring the individual’s life,
(i) the insurer, and
(ii) any potential
claimant under the contract, and
(h) if the individual has been declared an
absentee under the Absentees Act, the committee of his or her estate”[191]
2.51
In conclusion, there are two approaches to
defining “interested persons”. In Northern Ireland, Scotland and New Brunswick,
legislation provides for a broad provision allowing “any interested persons” to
apply for a declaration of presumed death order. In Quebec, a detailed
description of “interested persons” who may make an application for a
presumption of death order has been enacted.
2.52
The Commission has concluded that an approach
which provides a detailed, non-exhaustive list of persons who may bring an
application is more desirable. This is because it provides a level of clarity
for those left behind who may wish to bring a claim.
2.53
The Commission considers that it would be
appropriate to set out a non-prescriptive list that matches the actual
experience in the jurisdictions already discussed (close family being the most
usual persons appointed), but allowing sufficient flexibility to provide for
unusual cases. The Commission has accordingly concluded, and provisionally
recommends, that the following persons may apply to be appointed as the
administrator of the affairs of a missing person: (a) the missing person’s
spouse or civil partner; (b) the missing person’s cohabitant; (c) any other
next of kin of the missing person; (d) a creditor or (e) any other person
(including, where relevant, the State) with a sufficient interest. As already
discussed, the Commission has also concluded that this should also be the list
of persons who may apply for a declaration of presumed death (discussed in
detail in Chapter 3, below).
2.54
The Commission provisionally recommends
that the following persons may apply to be appointed as the administrator of
the estate or property of a missing person: (a) the missing person’s spouse or
civil partner; (b) the missing person’s cohabitant; (c) any other next of kin
of the missing person; (d) a creditor; or (e) any other person (including,
where relevant, the State) with a sufficient interest. The Commission provisionally recommends that this should also be
the list of persons who may apply for a declaration of presumed death.
(3) What can an administrator do?
2.55
In Australia, the administrator must act in the
best interests of the missing person, taking into account as far as possible
the wishes of the represented person. The legislation in New South Wales,
Victoria and the Australian Capital Territories all permit a limited and
specific use of the property of the missing person for a two year period, but
this may be extended for a further two years.[192]
The specific uses apply to:
·
The payment of the debts and engagements of, and
otherwise for the benefit of, the missing person
·
The maintenance and benefit of dependents of the
missing person
·
The care and management of the estate of the
missing person[193]
2.56
This is similar to the situation in
Quebec where its legislation provides for the court
to fix the amounts that it is expedient to allocate to the expenses of the
marriage or civil union, to the maintenance of the family or to the payment of
the obligation of support of the absentee.[194]
Similarly, in Ontario, the Absentees Act 1990 provides for the
administrator to act for the incapable person’s benefit.[195]
2.57
The Commission notes that both the
Australian and Canadian approaches are similar in that they provide for a
limited and specified use of property of the missing person for the benefit of
that person. The Commission has therefore provisionally concluded that an
administrator would have limited and specified powers to administer the affairs
of the missing person for a period of up to two years, which can be extended
for a further two years.
2.58
The Commission provisionally recommends
that an administrator have limited and specified powers to administer the
affairs of the missing person for a period of up to two years, which can be
extended for a further two years.
3
CHAPTER 3 PRESUMPTION OF DEATH LEGISLATION
A Introduction
3.01
In Chapter 1, the Commission provisionally
recommended that legislation should be enacted along the lines of comparable
presumption of death legislation in other countries, such as the Presumption
of Death (Northern Ireland) Act 2009. The Commission now turns to examine
in this Chapter the details of such legislation. In Part B, the Commission
discusses the limited nature of existing presumed death orders made by the High
Court. In Part C, the Commission sets out its conclusions and provisional
recommendations for reform, including the key elements of the presumption of
death legislation.
B The Limited Nature of Existing Law
3.02
When a person dies and they are not missing, their assets become subject
to the law of succession which permits the distribution of their assets in
accordance with the Succession Act 1965. The 1965 Act provides for the
estate of the deceased to devolve on and vest in the appointed personal
representatives.[196]
A grant of administration is then obtained, which allows for the distribution
of the assets, if any, to the relevant beneficiaries. The registration of death
also allows for those left behind to obtain a death certificate for the
deceased. This enables those left behind to deal with practical matters such as
the closure of relevant bank accounts, or the transfer of any jointly owned
assets (for example, a house or car).
3.03
Under the current law, in cases where a missing
person is believed to have died, a declaration of presumed death may be made by
the High Court.[197] The Court does not pronounce on the death of the person to
the estate of whom it declares presumed dead, unlike where a
coroner’s declaration of death in effect inquest authorises the General
Registrar for Births, Deaths and Marriages to register the death of the missing
person (in accordance with the Civil Registration Act 2004).
Instead, if the High Court is satisfied that the evidence points to a
reasonable presumption of death, it makes an order declaring presumed death.[198] This order
permits the grant of administration for the estate of the missing person only.
The making of an order for presumed death does not permit the death to be
registered. This means that no death certificate can be obtained. It is
therefore unclear how the practical issues such as the closing of bank accounts
of the missing person who is presumed dead, maintenance of dependents and the payment
of creditors are resolved. Similarly, as discussed below, the status of any
pre-existing marriage or civil partnership is unclear.
3.04
It is therefore clear that a gap in the legal consequences exists
between situations where a person dies in normal circumstances and where a
missing person is believed to have died. As discussed below, the Commission is
of the view that if the facts surrounding the disappearance of a person
indicate that the missing person may have died, those left behind should be
permitted to obtain a registration of death. In the first category of cases described
in Chapter 2, where it is proved that the missing person is virtually certain
to have died, those left behind should be permitted to obtain a registration of
death. In second category of cases described in Chapter 2, where death is highly probable due to the circumstances in which the
person disappeared or as a result of a long-term absence, those left
behind should be permitted to obtain a registration of presumed death. This
would permit those left behind to obtain a death certificate or presumption of
death certificate for the missing person.
3.05
The second issue concerns the waiting period before an
application can be made. As discussed above, a number of practical and legal
issues arise after the death of a person. These are resolved by the issuing of
a death certificate in a short period after the person’s death. Under
the current law in Ireland, while the common law rule concerning presumption of
death suggests that persons may have to wait up to 7 years for a presumed death
order in the High Court, this is in fact not always the case. Thus, in cases
where death is virtually certain, such as in the Irish case In the Goods of Freytag,[199]
an order of presumed death may be made in a short period of time
after their disappearance. The 7 year rule thus applies primarily to other
cases of missing persons, where death is highly probable. In these categories,
those left behind must wait for 7 years absence before bringing a claim before
the High Court to have a person declared presumed dead.
3.06
The Commission notes that the 7 year rule is long-established
and, indeed, is extremely well-known among those who deal with the issue of
missing persons in Ireland, which was confirmed in the discussions the
Commission held with individuals and groups leading to the publication of this
Consultation Paper. The 7 year rule has also been used by the Oireachtas,
albeit in a limited context, in section 18 of the Land and Conveyancing Law
Reform Act 2009 and been used as a reference point for social welfare
purposes.[200]
Similarly, it has in effect been placed on a statutory footing in Scotland[201] and Northern
Ireland.[202]
3.07
The Commission notes that, in a number of other
countries, the waiting period before missing persons may be declared presumed
dead has been reduced or gradated according to the probability of the death of
the missing person. For example, under the German Verschollenheitsgesetz
1939 (the Disappearance Act), a number of periods are set
depending on the circumstances of the disappearance. They range from three
months for a disappearance during a war to six months for a disappearance while
at sea.[203] The German legislation also makes provision for a waiting period of 25 years for persons who were under 25 at the time of their
disappearance, in circumstances that were not dangerous to their lives.[204] Similarly, some states in the United States of America operate a
much lower time period; New York[205] has a 3 year
waiting period and Georgia[206] a four year waiting period.[207]
3.08
The Council of Europe 2009 Recommendation on
Missing Persons also takes account of the circumstances of the disappearance
and the related probability of the death of the missing person. The
Recommendation states:[208]
“(1). Where, in the light
of all the circumstances, the death of the missing person can be taken as
certain, the lodging of the request [for a declaration of presumed death]
should preferably be possible without a waiting period.
4(2). Where the
circumstances of disappearance of the missing person are such that it is
reasonable to conclude that his or her death is likely, the time which must
have elapsed from the disappearance, or from the receipt of the last news that
the person was alive, for lodging the request should preferably be one year at
the most.
4(3). Where the death
of the missing person is uncertain, the time which must have elapsed from the
disappearance, or from the receipt of the last news that the person was alive,
for lodging the request should preferably be seven years at the most.”
3.09
This gradated approach is consistent with the
actual application of the existing common law rule. As already discussed, this
can lead to a declaration of presumed death within months where the death is
virtually certain, as in In the Goods of Freytag[209] (3 months after disappearance). The Commission also notes that the
2009 Recommendation also refers to a 7 year rule, albeit “preferably... seven years at the most.” While the 2009
Recommendation indicates, therefore, a preference to regard the 7 year rule as
an outward limit, the Commission considers that there is merit in retaining the
well-known reference point of the 7 year rule, bearing in mind always that it
does not require in all cases that 7 years have passed since
disappearance. The Commission also notes in this respect that the 2009
Recommendation also requires member states to have regard to maintaining a fair
balance between the interests of those concerned, including the person whose
presumed death is declared. Thus, the maintenance of a long-established rule
can be seen as respecting this general principle.
3.10
The Commission’s categorisation of missing
persons into two, namely, where death is virtually certain and, where death is highly probable due to the circumstances in which the
person disappeared, are based on a sliding scale of
probability of death, which reflects the likelihood of the missing person being
located alive. These categorisations allow for the separation of application processes
and the gradating of time periods, from a shorter period where death is
virtually certain, to a longer period where the person is missing for a number
of years. It also allows for the separation of legal and practical consequences
according to the probability of locating the person alive. This also reflects
the essential elements of the 2009 Council of Europe Recommendation.
C Conclusions and Provisional Recommendations
(1) Where death is virtually certain.
3.11
As the law currently stands, in cases where death is virtually certain
and the body of the missing person is believed to have been either lost at sea
or destroyed in a fire, section 23 of the Coroners Act 1962
allows for a coroner, after conducting an inquest, to issue a declaration of
death. This in turns allows the Registrar of Births, Deaths and Marriages to
issue a death certificate for the missing person. The Commission’s provisional
recommendations in Chapter 1 propose that the category of where death is
virtually certain would be wider than the limited situations recognised in
section 23 of the Coroners Act 1962
3.12
The Council of Europe 2009 Recommendation on
Missing Persons recommends that there should, in effect, be no waiting period
required where death is virtually certain. This approach is, in effect, already
in place under existing practice in Ireland, as indicated by the decision in In the Goods of Freytag[210]
(declaration made 3 months after disappearance). It
is also mirrored in legislation in numerous countries;
for example, the Netherlands,[211] Northern Ireland[212] and those countries who have implemented the 1966 ICCS Athens
Convention allow for the immediate declaration of presumed death in
situations where death of the missing person is virtually certain.
3.13
Therefore, in cases where death is virtually
certain, the Commission considers that there is no reason to require those left
behind to wait any longer than is necessary before the missing person’s death
can be registered. Similarly, the Commission also considers that such an
application could be made to a coroner, which would involve, in effect, an
extension of section 23 of the Coroners Act 1962, which already
envisages an inquest involving a missing person, albeit in limited
circumstances. Under this proposed reform, where the coroner is satisfied that
death is virtually certain, a declaration of death can be made and this would
allow the Registrar of Births, Deaths and Marriages to issue a death
certificate. The Commission emphasises that the coroner would be acting on
relevant proofs that establish that death is virtually certain. In this
respect, an applicant would be required to bring to the coroner the detailed
material which the Commission has already recommended is required before a presumption
of death order may be made;[213] and that the coroner would also be required to have regard to the
factors which the Commission has also recommended should be involved in any
such decision.[214] Once the coroner makes the finding that death has occurred, this,
in turn, would authorise the applicant to register the death in the Register of
Deaths provided for under the Civil Registration Act 2004. This would
also allow for the standard legal consequences of death to arise within a short
time period after the disappearance of the person, while also helping those
left behind deal with the practical issues that arise.
3.14
The Commission provisionally recommends that,
in situations where death is virtually certain, there should be no minimum
waiting period before an application can be made to obtain a declaration of
presumed death. The Commission also provisionally recommends that this
declaration could be made by a coroner and would be identical to a standard
declaration of death; that it would authorise the applicant to register the
death in the Register of Deaths provided for under the Civil Registration Act
2004; and that it would have the identical legal consequences that arise on the
death of a person.
(2) Where death is highly probable
3.15
The Commission considers that in the
category of missing persons where death is highly probable a declaration of
“presumed death” would be more appropriate and that a
separate register of presumed deaths should be established in line with the
approach in comparable legislation such as the Presumption of Death
(Scotland) Act 1977 and the Presumption of Death (Northern Ireland) Act
2009. This is because there is a greater possibility that the person may
return in some cases, and it is therefore preferable that the record of such
presumed deaths be separate from the standard register of deaths.
3.16
The Commission is of the view that, to facilitate such orders, a register of presumed deaths, distinct
from the register of deaths, should be established by the Registrar of Births,
Deaths and Marriages under the Civil Registration Act 2004. This would
be comparable to the position in Northern Ireland where, under section 15 of the Presumption of Death Act (Northern Ireland) Act
2009, a separate register of Presumed Deaths has
been established.[215] This declaration of presumed death would have the same effects as a
standard declaration of death.
3.17
The Commission accepts that it may be difficult
to differentiate clearly in all instances, at least initially, between cases
where death is certain and where death is highly probable. It may be that,
under the Commission’s proposed reforms, an application might be made initially
at least to a coroner claiming that the circumstances suggest that death is
certain. Whether the coroner accepts such an application would, of course, be a
matter for the coroner to determine. The Commission considers that, in any
event, this does not create an insurmountable problem. This is because the
coroner would have available to him or her the detailed material which the
Commission has already recommended is required before a presumption of death
order may be made;[216] and that the coroner would also be required to have regard to the
factors which the Commission has also recommended should be involved in any
such decision.[217] In this respect, a coroner might, in some instances, come to the
conclusion that the application does not come within the category of missing
person where death is certain.
3.18
The Commission has concluded that, where
death is highly probable, but not certain, it is preferable that a declaration
of presumed death be made by High Court. The Court will, of course, be acting
on the same essential proofs and would have regard to the same factors, but
would be entitled to conclude that death may nonetheless be presumed. Once
these proofs are satisfied, the High Court will issue a declaration of presumed
death which would then allow the applicant to apply for an entry on the
Register of Presumed Deaths and the issuing of a certificate of presumed death.
The Commission has also concluded that this certificate of presumed death would
have the same effect as a standard death certificate and would allow for the
standard consequences of death to arise, such as the grant of administration of
the estate, and it would have the same effect on any marriage or civil
partnership.
3.19
The Commission provisionally recommends that,
in situations where death is highly probable, a declaration of presumed death
may be made in the High Court; that the declaration would authorise the
applicant to register the death in a Register of Presumed Deaths to be
established for this purpose under the Civil Registration Act 2004; and that it
would have the identical legal consequences that arise on the death of a
person.
(3) Retaining the 7 year reference period where death is highly probable
3.20
The remaining issue to be considered in this aspect of the
Commission’s proposals is whether the common law 7 year rule should remain the
relevant reference period for determining whether it should be presumed that a
person has died. The Commission notes that the 7 year rule is long-established
and, indeed, is extremely well-known among those who deal with the issue of
missing persons in Ireland, which was confirmed in the discussions the
Commission held with individuals and groups leading to the publication of this
Consultation Paper. The 7 year rule has also been used by the Oireachtas,
albeit in a limited context, in section 18 of the Land and Conveyancing Law
Reform Act 2009 and been used as a reference point for social welfare
purposes.[218]
Similarly, it has, in effect, been placed on a statutory footing in Scotland[219] and Northern
Ireland.[220]
3.21
The Council of Europe 2009 Recommendation on
Missing Persons suggests that a waiting period where death of the missing
person is uncertain should be 7 years “at the most.” This was clearly an
attempt to recognise that the existing laws in the Member States of the Council
of Europe contained a range of waiting times. These range from a fixed term of
5 years in Holland,[221] Turkey,[222] and Switzerland,[223] through the presumptive 7 year rule in Ireland and the United
Kingdom and up to 10 years in other countries. The intention of the 2009
Recommendation was that some median point between these would be appropriate.
3.22
In a number of Council of Europe Member States,
the waiting period is adjusted according to the age of the missing person. For
example, in Germany a declaration of presumed death can be issued after 10
years, or 5 years if that person is aged 80 or more. This period is extended to
25 years where the missing person is under the age of 25 at the time of
disappearance.[224] Spain has a similar law which has a standard 10 year waiting period
that is reduced to 5 years if the missing person is 75 or more.[225]
3.23
The Commission acknowledges that the position in Europe in terms of
the waiting periods varies considerably and that there is no universal or
uniform rule in place. Outside Europe, the position also varies, but in many
Common Law states, such as Australia, the presumptive 7 year rule continues to
be applied both by courts applying the traditional common law rule and also
where there has been legislative intervention. The Commission notes that there
is no evidence in the literature to suggest that this has given rise to
injustice; but the Commission also considers that this result has been achieved
in a number of states by a more flexible approach to waiting periods where
death is virtually certain and can also be attributed to the introduction of
legislation to ensure that interim measures are also put in place almost
immediately, such as the appointment within months of an administrator with
limited powers to deal with the missing persons assets.
3.24
The Commission has also taken into account that the 7 year presumptive
rule has been in place for many years. Indeed, in the discussion with
interested groups leading to the preparation of this Consultation Paper, the
Commission was conscious that the 7 year rule was well-known to those affected
by the disappearance of their loved ones, and is referred to, for example, in
the websites of groups working in this area[226]
and of the Citizens Information Board.[227]
The Commission also notes that the 7 year rule was also recognised by the
Oireachtas in section 18 of the Land and Conveyancing Law Reform Act 2009,
albeit in the limited context of trusts of land.
3.25
The Commission is conscious that the Council of Europe 2009
Recommendation on Missing Persons refers to a waiting period of 7 years “at the
most” in connection with declarations of presumed dead. The Commission notes,
in this respect that, in cases where death is virtually certain, the
Commission’s provisional recommendations for reform provide for a very short
waiting period falling well short of the 7 year period. Where death is highly
probable, the Commission considers that the 7 year period is not unnecessarily
lengthy, although as already noted, the Commission concurs with the approach
taken in a number of other countries, notably Australia and Canada, that any
potential unfairness can be avoided by a more flexible approach to waiting
periods where death is virtually certain. In parallel with this, the Commission
also agrees – and has so recommended already – that, separately from the issue
of presumed death, legislation should be enacted to ensure that interim
measures are also put in place almost immediately, such as the appointment
within months of an administrator with limited powers to deal with the missing
persons assets. The Commission considers that this additional reform would also
reflect the principles in the 2009 Council of Europe Recommendation.
3.26
The Commission has therefore concluded that the
common law 7 year rule be retained as the key reference point for cases
involving a missing person where death is highly probable. The Commission
considers in this respect that the wording used in section 18(5) of the Land
and Conveyancing Law Reform Act 2009 is an appropriate model in this
respect, namely that where, by reason of absence from the
State or otherwise, it remains uncertain for a period of at least 7 years as to
whether a person is alive, it shall continue to be presumed that the person is
dead.
3.27
The Commission provisionally recommends
that, in respect of a person whose disappearance indicates that death is highly
probable, and where, by reason of absence from
the State or otherwise, it remains uncertain for a period of at least 7 years
as to whether a person is alive, it shall continue to be presumed that the
person is dead.
(4) Persons who may apply for a declaration of presumed death
3.28
It is clear that those left behind, and who are therefore affected by
the person’s absence, are most likely to want to bring an application where the
missing person disappears in circumstances that indicate that they may have
died. This includes spouses, civil partners, children, parents, or even close
friends of the missing person. Other parties such as insurance companies,
employees, or the State may also have a legitimate interest in bringing an
application to have the missing person’s estate administered or to have the
person declared presumed dead.
3.29
The Commission has already discussed, in the context of its
recommendations concerning the interim administration of the estate and
property of a missing person, who may apply for such an order. The Commission
has also already recommended that the same persons should also be eligible to
apply for a declaration of presumed death. For the sake of completeness, the
Commission sets out here the thrust of that provisional recommendation as it
applies to a declaration of presumed death.
3.30
The Commission provisionally recommends that the
following persons may apply for a declaration of presumed death: (a) the
missing person’s spouse or civil partner; (b) the missing person’s cohabitant;
(c) any other next of kin of the missing person; (d) a creditor; or (e) any
other person (including, where relevant, the State) with a sufficient interest.
(5) The status of marriage or civil partnership
3.31
The death of one of the parties to a marriage has the effect of bringing
an end to the marriage, and the surviving spouse may lawfully remarry.[228] The same occurs
on the death of one party to a civil partnership. Where, however, a missing
person who is declared presumed dead is married or in a civil partnership at
the time of their disappearance, the status of the other party left behind is
more problematic.
3.32
In cases other than where a coroner issues a declaration of death under
section 23 of the Coroners Act 1962, the remaining spouse or civil
partner who wishes to remarry or form a civil partnership will face a number of
problems. In accordance with the statutory version of the 7 year rule in
section 57 of the Offences Against the Person Act 1861, if the remaining
person wishes to enter into a second marriage, they will not be prosecuted for
bigamy where this is done 7 years after the disappearance, but within that 7
year period a question might arise. More significantly, whatever about the
defence in criminal law after 7 years absence, it appears that so far as the
civil law is concerned if it is later discovered that the missing spouse was in
fact alive at the time of the second marriage, even where the spouse
disappeared in circumstances which led to a reasonable inference that he or she
was dead, the second marriage is completely void and the marriage to the
returned missing person remains in place.[229]
The same problem arises where a person who is either married or already in a
civil partnership to a missing person enters into a civil partnership with
another person.
3.33
Under the current law, it might be argued that the remaining party could
obtain a divorce on grounds of separation after four years’ absence of the
other party.[230]
It is unclear, however, whether this applies in circumstances where one party
is missing and is believed to have died. In any event, the Commission is of the
view that, given the sensitivities of those left behind in the context of
missing persons, it would not be appropriate to use this mechanism.[231] Similarly, it
would not be appropriate to use the mechanism for dissolution of a civil
partnership in the context of a missing person.[232]
3.34
The law in the England and Wales has been reformed in light of these
problems.[233]
Section 19(3) of the Matrimonial Causes Act 1973 provides that any
married person who alleges that reasonable grounds exist for supposing that the
other party to the marriage is dead may present a petition to the court to have
it presumed that the other party is dead and to have the marriage dissolved “and
the court may, if satisfied that such reasonable grounds exist, grant a decree
of presumption of death and dissolution of the marriage.” Section 19(3) of the
1973 Act enacted a statutory version of the 7 year rule by providing that:
“In
any proceedings under this section the fact that for a period of seven years or
more the other party to the marriage has been continually absent from the
petitioner and the petitioner has no reason to believe that the other party has
been living within that time shall be evidence that the other party is dead
until the contrary is proved.”
3.35
While the statutory presumption appears to be somewhat different from
the common law presumption, as it is the spouse’s belief which must be
reasonable, the usual forms of proofs must be established to show that the
missing spouse had probably died.[234]
3.36
In the case of civil partnerships, section 55 of the English Civil
Partnership Act 2004 allows for a presumption of death order which has the
effect of dissolving the civil partnership.[235]
As with section 19(3) of the Matrimonial Causes Act 1973, the
order provided for in section 55 relates only to the dissolution of the civil
partnership.
3.37
In most other countries which, unlike England and Wales, have legislation
providing exclusively for presumption of death orders, the making of the order
is sufficient to bring to an end any marriage or civil partnership. For
example, this is the case in Northern Ireland,[236] Scotland[237] and France.[238] This means that
once the declaration of presumed death is obtained, the missing person is
treated as deceased, and the marriage or civil partnership is at and end.
3.38
The Commission, as provisionally recommended in Chapter 2, is of the
opinion that a presumption of death order should have all the effects as a
standard death certificate. This would entitle any spouse or civil partner to
the widowed or surviving civil partner social welfare benefit. It would also
allow the remaining party to remarry or enter into a civil partnership should
they wish to do so.
3.39
The Commission provisionally recommends that a declaration of
presumed death should have the effect that a marriage or civil partnership has
come to an end.
4
CHAPTER 4 When the missing person returns and international aspects of missing persons
A Introduction
4.01
In this Chapter, the Commission discusses how the law
should deal with the situation where a missing person, in respect of whom an
administrator has been appointed to manage their affairs or in respect of whom
a declaration of presumed death has been made, is in fact alive and returns.
This could arise in the settings in which the missing person had simply wanted
to break contact with his or her family and was unaware that the disappearance
had resulted in the appointment of an administrator or a declaration of
presumed death. It could also arise where fraud was involved, as in the case of
John Darwin, the English man who faked his own death while out canoeing. The
Commission also discusses some of the specific international aspects of the
proposed legal framework.
4.02
In Part B, the Commission discusses how the missing
person’s property can be dealt with through a variation order. In Part C, the
Commission discusses the effect on a marriage or civil partnership. In Part D,
the Commission turns to the specific international aspects of the proposed
legal framework.
B Property of the Missing Person Who Returns: Variation Order
4.03
When a person who is declared presumed dead is subsequently found to be
alive, they will usually wish to regain control of their property. If this
property is subject to an administration order, this would clearly require the
removal of the administration order. However, if the missing person is declared
dead or presumed dead, then as recommended, their assets are subject to the Succession
Act 1965. This provides for the distribution of the assets of the missing
person in accordance with succession law.
4.04
Under the current law, section 49(3) of the Succession Act 1965
provides that:
“nothing in this section shall prejudice the
right of any creditor or claimant to follow any such assets into the hands of
any person who may have received them.”
4.05
This has the effect of allowing a claimant to acquire
property that has been transferred to third parties, even where the initial
transfer was done in accordance with succession law. The Commission is of the
opinion that, as far as possible, any recommendations regarding the return of
property to a missing person be made in line with section 49(3) of the Succession
Act 1965. The Commission has examined in this respect relevant provisions
in Northern Ireland, Scotland and Canada.
4.06
In Northern Ireland, section 5 of the Presumption of
Death (Northern Ireland) Act 2009 provides that a declaration of presumed
death may be varied or revoked by a variation order made by the High Court.
Section 6(1) of the 2009 Act provides that, subject to the specific provisions
of the section itself “a variation order shall have no effect on rights to or
in any property acquired as a result of a declaration [of presumed death].”
Section 6(2) provides that where a variation order has been made the Court
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 declaration as it
considers reasonable in all the circumstances of the case.” Section 6(3) of the
2009 Act further states that the variation order will have no effect on any
income accrued between the time of the issuing of the declaration of presumed
death and the variation order. Section 6(6) provides that if a third party
acquires rights to or in the property, in good faith and for value, the
returning person may not bring a claim for the property against him or her.
Finally, section 7 of the 2009 Act provides that the trustee of the estate is
required to take out an insurance policy in order to provide an indemnity
against claims that may arise after the distribution of the missing person’s
assets has occurred.
4.07
These provisions are virtually identical to the
Scottish Presumption of Death (Scotland) Act 1977,[239] with the exception that section 7 of the Presumption of Death
(Scotland) Act 1977 allows for close family members (parents, children,
grandparents and grandchildren) to make a claim to be exempted from any
variation orders.
4.08
The legislation in Northern Ireland and Scotland is also similar to that
in a number of Canadian provinces. For example in British Columbia, section
5(2) of the Survivorship and Presumption of Death Act 1996, provides that:
“if a person who is presumed to be dead is
found by the court to be alive, the court may, on the application of any
interested person, by order, give directions the court considers appropriate
respecting the property of the person found to be alive and its preservation
and return.”[240]
4.09
This provision grants the Court discretion to order the reconveyance of
the property to the missing person, which is similar to the variation order
procedure in the Northern Ireland 2009 Act and the Scottish 1977 Act.
4.10
This approach is also seen in New Brunswick, which provides for a method
where the property may be reconveyed:
“to the owner the
whole or a specified portion of the estate in his possession at the time of the
order, or to pay to the owner a specified amount representing the value of the
estate distributed to him or a portion thereof if, in the opinion of the Court,
having regard to the circumstances of the case, including any inconvenience or hardship
that would be imposed upon the person subject to the order, the making of such
an order would be just.”[241]
4.11
The Commission has concluded that it is appropriate to provide for a
procedure whereby a variation order regarding property may be brought after the
initial declaration of the missing person as dead or presumed dead. The
variation order may be brought by any person with sufficient interest. This is
in line with the current position in Northern Ireland,[242] Scotland,[243] New Brunswick[244] and British
Colombia.[245]
4.12
The Commission has concluded that the general approach taken in the
legislation in Northern Ireland and Scotland should be adopted. This would
grant the Court wide discretion should the returning missing person bring a
claim for a variation order. The Commission is also of the view that the Court,
in considering any applications for a variation order, should have regard to the circumstances of the case,
including any inconvenience or hardship that would be imposed upon the person
subject to the order and whether the making of such an order would be just in
the circumstances. The variation order would not affect any income
accrued from the date of the declaration of presumed death to that of the
variation order. It would also protect third parties who acquire the property in
good faith and for value from potential claims brought against the property.
4.13
The Commission provisionally recommends that a missing person who
has been declared presumed dead but who returns may apply to have a variation
order made by the High Court concerning his or her estate. The Commission
provisionally recommends that, subject to the specific
provisions concerning the making of such a variation order, it should not, in
general have any effect on rights to or in any property acquired as a result of
a declaration of presumed death. The Commission provisionally recommends that
where a variation order has been made, the Court must make such further order,
if any, in relation to any rights to or in any property acquired as a result of
the declaration of presumed death as it considers reasonable in all the
circumstances. The Commission also provisionally recommends that: (a) the
variation order will have no effect on any income accrued between the time of
the issuing of the declaration of presumed death and the variation order; and
(b) that if a third party acquires rights to or in the property, in good faith
and for value, the returning person may not bring a claim for the property
against him or her.
C Marriage or Civil Partnership of the Missing Person Who Returns
4.14
As already discussed in Chapter 3, when a spouse or civil partner dies,
their marriage or civil partnership comes to an end. The other party left
behind is then free to enter into a second marriage or civil partnership, and
also becomes entitled, for example, to the widowed or surviving civil partner
social welfare payment. The provisional recommendation made in Chapter 3
provides that when a missing person is declared dead or presumed dead all the
legal effects of a standard death arise. This includes that any marriage or
civil partnership has come to an end.[246]
Where the remaining spouse has remarried or entered into a civil partnership in
the incorrect belief that the missing person was declared dead or presumed
dead, the missing person’s return creates a clear difficulty. This Part discusses
the consequences where the marriage or civil partnership of a missing person
who is declared presumed dead is dissolved, and that missing person is
subsequently found to be alive.
(1) Marriage
4.15
In situations where a standard death has occurred, there is no question
of the spouse being found to be alive. In such circumstances, the marriage has
come to an end, and the remaining spouse is free to remarry or enter into a
civil partnership. Under the provisional recommendations made in Chapter 3, a
declaration of presumed death ends any pre-existing marriage or civil
partnership. However, the recommendation does not deal with the situation where
the missing person is subsequently found to be alive after the making of the
declaration.
4.16
The position in Northern Ireland where a missing person who is presumed
dead and subsequently returns is that if no appeal is brought within the time
allowed or an appeal is dismissed, the ending of the marriage or civil
partnership is final. Section 3 of the Presumption of
Death (Northern Ireland) Act 2009 states:
“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...”
4.17
In Scotland, section 3(3) of the Presumption of
Death (Scotland) Act 1977 provides that in situations where a spouse
is declared presumed dead the marriage cannot be reinstated:
“Where a marriage to which the missing
person is a party has been dissolved by virtue of decree in an action of
declarator, the dissolution of the marriage shall not be invalidated by the
circumstance that the missing person was in fact alive at the date specified in
the decree as the date of death.”
4.18
Therefore the legislation in Scotland explicitly
forbids any re-opening of the dissolution of a marriage, even in circumstances
where the missing person who was presumed dead was, in fact, alive. The
corresponding provision in Northern Ireland allows, however, for an appeal to
be made concerning the dissolution of the marriage or civil partnership, if
made within the time period allowed.[247]
4.19
In considering the different approaches to this
issue, the Commission has provisionally concluded that the question of whether
a marriage or civil partnership remains valid if the missing person returns
must have regard to the specific circumstances arising. Given the complexity
that this gives rise to, and having regard to the relevant provisions of
Article 41 of the Constitution, it invites submission as to the precise basis
for a determination in such cases.
4.20
The Commission provisionally recommends that
the question of whether a marriage remains valid if the missing person returns
must have regard to the specific circumstances arising and invites submissions
as to the precise basis for a determination in such cases.
(2) Civil Partnership
4.21
Broadly similar factors arise in the context of civil partnership in
that under the provisional recommendations made in Chapter 3 above, a
declaration of presumed death brings to an end any pre-existing civil
partnership but does not deal with the situation where the missing person is
subsequently found to be alive.
4.22
As stated, the position in Northern Ireland where a missing person who
is presumed dead and subsequently returns is that if no appeal is brought
within the time allowed or an appeal is dismissed, the dissolution of the civil
partnership is final:
“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...”[248]
4.23
This is similar to the position in England, where section 55 of the Civil
Partnership Act 2004 makes provision for the dissolution of a civil
partnership where one party has been presumed dead:
“(1) The court may, on an application made by a civil partner,
make a presumption of death order if it is satisfied that reasonable grounds
exist for supposing that the other civil partner is dead.
(2) In any proceedings under this section the fact that—
(a) for a period of 7 years or more
the other civil partner has been continually absent from the applicant, and
(b) the applicant has no reason to
believe that the other civil partner has been living within that time,
is evidence that the other civil partner is dead until the
contrary is proved.”[249]
4.24
This presumption of death order has the limited effect of dissolving the
civil partnership only,[250]
and does not permit a grant of administration. It is also generally not deemed
final until 6 weeks have passed from the date of the declaration of presumed
death,[251]
after which the civil partnership cannot be reinstated at the request of one
party.
4.25
Under the current law in Ireland, unlike in the case of marriage, there
is no specific constitutional reference to civil partnerships. Nonetheless, the
Commission has provisionally concluded that the question of whether a civil
partnership remains valid if the missing person returns must have regard to the
specific circumstances arising and invites submissions as to the precise basis
for a determination in such cases.
4.26
The Commission provisionally recommends that the
question of whether a civil partnership remains valid if the missing person
returns must have regard to the specific circumstances arising and invites
submissions as to the precise basis for a determination in such cases.
D International Aspects of Missing Persons
4.27
As already noted, missing persons often
disappear where their last known sighting was in a foreign country. In the
past, events such as World War II (1939-1945) have provided examples whereby
due to the nature of the events, a number of declarations of presumed death
were required for individuals who disappeared while abroad.[252] In the context of increased international travel and patterns of
emigration and immigration in a globalised setting, there is an even more
pressing need to ensure that reform in this area reflects the international
nature of some missing persons cases.[253]
4.28
Similarly in Ireland, the category of missing
persons known as “the Disappeared” provides another element to the
international aspect of missing persons. As already discussed, the Disappeared
are a category of missing persons who were abducted and buried in unmarked
secret locations by paramilitary groups operating in Northern Ireland during
the period of violence between the 1970s and late 1990s in particular. At the
time of writing (November 2011), 9 of 16 of the remains of the Disappeared have
been found.
4.29
Against this particular background in Ireland,
it is clear that the provisions of the Presumption of Death (Northern
Ireland) Act 2009 were tailored to take account of the need to provide for
declarations of presumed death in respect of those of the Disappeared whose
bodies have not been found (and, given the passage of time, may never be
found). The Commission also notes that this involves a very specific
international dimension to missing persons in Ireland, because it is generally
accepted that at least some of the Disappeared may have been abducted in
Northern Ireland but were buried (and possibly killed) in this State. To date,
7 of the bodies actually recovered had been buried in this State.
4.30
The international law aspect of missing persons was recognised in the
1966 ICCS Convention on Establishing Death (the Athens
Convention). As already noted, the 1966 Convention provided for the limited
situations in which the person went missing in a natural disaster or terrorist
attack and where death was certain. The 2009 Council of Europe Recommendation
on Missing Persons has also recognised the need to deal with the international
dimension to missing persons.
(1) Where an Irish citizen disappears abroad
4.31
In Ireland, it is clear that if a person goes
missing abroad in circumstances that indicate that death is virtually certain,
a grant of administration may be obtained in the courts virtually immediately.
Thus, in In the Goods of Freytag,[254]
a declaration of presumed death was made 3 months after Mr Freytag’s
disappearance in the 1908 earthquake in Messina in Italy. A similar recent example is of the Irish citizen Brendan Donegan who
disappeared while attempting to climb the Peruvian Andes in South America. His
wife successfully applied to the High Court for an order for administration of
his estate on the basis that, although his body had not been found, the
evidence in this case was sufficient to establish that his death was, in the
language of the terminology used in this Consultation Paper, virtually certain.[255]
4.32
The current law is, however, unclear as to the
position where a foreign court issues a declaration of death or presumed death
for an Irish citizen who disappears while abroad. The Commission is of the view
that, in such a case, those left behind should not be at a disadvantage by
virtue of the location of the disappearance.
4.33
The Commission has, therefore, concluded that
where an Irish citizen disappears while abroad an application may be made to
the High Court for any of the orders already provided for in this Consultation
Paper, namely (a) an order for the administration of the missing person’s
estate or (b) a declaration of presumed death. The Commission also
provisionally recommends that any such application should be subject to the
same criteria as apply where the person is presumed to have died in Ireland,
and that the High Court may also recognise any orders made in any other State
in connection with the disappearance abroad, subject to relevant rules
concerning proof of foreign documents, including in accordance with the 1961 Hague
Apostille Convention.[256]
4.34
The Commission provisionally recommends that
where an Irish citizen disappears while abroad an application may be made to
the High Court for (a) an order for the administration of the missing person’s
estate or (b) a declaration of presumed death. The Commission also
provisionally recommends that any such application should be subject to the
same criteria as apply where the person is presumed to have died in Ireland,
and that the High Court may also recognise any orders made in any other State
in connection with the disappearance abroad, subject to relevant rules
concerning proof of foreign documents, including in accordance with the 1961
Hague Apostille Convention.
(2) Where a person from abroad disappears in Ireland
4.35
Comparable, though somewhat different,
considerations arise in the context of a person from abroad who goes missing in
this State. In effect, this involves seeing the case of Mr Freytag or Mr
Donegan in reverse. The question arises as to whether the Italian, or Peruvian,
authorities would require, as a matter of Italian or Peruvian law, that the
usual laws that arise after a death, or presumed death, should be applied to a
person who has been in Italy or Peru for a short time and has disappeared. It
is likely that certain aspects of Italian or Peruvian law would be applicable,
notably as to whether an inquest is required where the person’s body has not
been found.
4.36
The frequency and ease with which persons may now travel across the
world means that the problem of persons disappearing while abroad is a real
issue. The prevalence of terrorist attacks and frequency of natural disasters
has also increased in recent times. For example, the 1985 terrorist attack on a
plane flying from Delhi to Montreal, which involved a detonation and explosion
off the coast of Cork, involved the death of people of many different
nationalities (none of whom were Irish), and led to inquests being held in
Ireland. Some of the victims’ bodies were never recovered from the sea.
4.37
The Commission is aware that, against this backdrop, non-Irish
nationals may disappear while in Ireland, and thus those left behind may wish
to obtain a declaration of presumed death in Ireland. The Council of Europe
2009 Recommendation on Missing Persons provides that a presumption of death law
should take account of the following circumstances:
“where the disappearance occurred in the
territory of the State...
where the disappearance occurred during a
voyage of a vessel or aircraft registered in that State;
where the missing person was a national of that
State or was domiciled or resident in its territory;
where the missing person had property or other
financial interest (or obligations) in that State.”[257]
4.38
The relevant legislation in a number of countries reflects a more
narrow approach than suggested in the Council of Europe 12009 Recommendations.
For example, the legislation in Northern Ireland[258] and Scotland[259] requires that
the person, in respect of whom the declaration of presumed death is sought,
must be habitually resident or domiciled in the country at the time of the
disappearance. These provisions are widened by permitting a
spouse (or civil partner in Northern Ireland) to make an application if they
themselves are domiciled or habitually resident in the State.[260]
4.39
The Commission considers that the spouse or
civil partner should be able to make an application for a presumption of death
for their respective spouse or civil partner. This would allow for a situation
where a person who relocated to Ireland after their spouse or civil partner
disappeared would have the same recognition had their spouse or civil partner
died.
4.40
The Commission also considers that (apart from
the issue as to whether an inquest is to be held) it is appropriate that there
be some degree of connection with the State beyond a short-term visit before
the question would arise as to whether an application should be made to the
authorities in that State for the type of orders already discussed in this Consultation
Paper.
4.41
In this respect, the Commission considers that
the model adopted in the Presumption of Death (Northern Ireland) Act 2009 provides
a suitable template for this State. Section 1(2)(a) of the 2009 Act provides
that an application may be made where the missing person was habitually
resident in Northern Ireland for one year prior to their disappearance and
section 1(2)(b) of the 2009 Act provides that the applicant be habitually
resident in Northern Ireland for one year prior to the application.
4.42
Separately, section1(2)(c) of the 2009 Act
provides that an application may be made by a close relative of a missing
person where that missing person is a victim of violence within the meaning of
section 1(4) of the Northern Ireland (Location of Victims’ Remains) Act 1999.
The 1999 Act is the Act that established the Independent Commission for the
Location of Victims’ Remains pursuant to the 1998 Belfast (Good Friday)
Agreement in order to locate the bodies of the Disappeared. The equivalent
legislation in this State is the Criminal Justice (Location of Victims’
Remains) Act 1999.
4.43
The Commission considers that, bearing this
specific historical background in mind, and also that the circumstances in
which such applications are likely to arise would include those connected with
the Disappeared, it would be especially important to ensure that the relevant
legislative provisions should, to the greatest extent possible, be consistent
with each other.
4.44
The Commission has, therefore, concluded that in
respect of a person who is ordinarily resident or habitually resident in
Northern Ireland for 12 months or who has been habitually resident or
ordinarily resident in this State for 12 months and who disappears while in the
State, or is believed to have disappeared in the State, an application may be
made to the High Court by any interested person who has been habitually
resident in the State for 12 months for any of the orders already provided for
in this Consultation Paper, namely: (a) a declaration of presumed death or (b)
an order for the administration of the missing person’s estate.
4.45
The Commission has also concluded that separate
provision should be included to deal with those described as the Disappeared,
and that an application may also be made for the orders already provided for in
this Consultation Paper by a close relative of a missing person where that
missing person is a victim of violence within the meaning of the Criminal
Justice (Location of Victims’ Remains) Act 1999.
4.46
The Commission also provisionally recommends
that the High Court may recognise any orders made in any other State in
connection with any disappearance, subject to relevant rules concerning proof
of foreign documents, including in accordance with the 1961 Hague Apostille
Convention.
4.47
The Commission provisionally recommends that,
in respect of a person who is ordinarily resident or habitually resident in
Northern Ireland for 12 months or who has been habitually resident or
ordinarily resident in this State for 12 months and who disappears while in the
State, or is believed to have disappeared in the State, an application may be
made to the High Court by any interested person who has been habitually
resident in the State for 12 months for any of the orders already provided for
in this Consultation Paper, namely: (a) a declaration of presumed death or (b)
an order for the administration of the missing person’s estate. The Commission
provisionally recommends that an application may also be made for the orders
already provided for in this Consultation Paper by a close relative of a
missing person where that missing person is a victim of violence within the
meaning of the Criminal Justice (Location of Victims’ Remains) Act 1999. The Commission
also provisionally recommends that the High Court may recognise any orders made
in any other State in connection with the disappearance, subject to relevant
rules concerning proof of foreign documents, including in accordance with the
1961 Hague Apostille Convention.
5
CHAPTER 5 SUMMARY OF PROVISIONAL RECOMMENDATIONS
The provisional recommendations made by the
Commission in this Consultation Paper are as follows:
5.01
The Commission provisionally recommends that, in
the context of any legislative framework concerning the civil law status of
missing persons, a missing person should be defined as a person who is observed
to be missing from their normal patterns of life, that those who are likely to
have heard from them are unaware of their whereabouts and that the
circumstances of their being missing raises concerns for their safety and
well-being. [paragraph 1.17]
5.02
The Commission provisionally recommends that, for the purpose of
the civil law aspects of the law of missing persons, a statutory framework
should be in place which would provide for a presumption of death in respect of
two categories of missing persons. The first category, where the circumstances
of their disappearance indicates that death is virtually certain, would deal
with persons who go missing in circumstances (whether arising from a civil
accident or arising from a violent incident) where their death is virtually
certain given the circumstances of the disappearance. The second category,
where both the circumstances and length of the disappearance indicate that it
is highly probable that they have died and will not return, would apply where
the disappearance occurred in dangerous circumstances or in other circumstances
in which loss of life may be presumed. [paragraph 1.114]
5.03
The Commission provisionally recommends that, where a person applies to
have a presumption of death order, the following detailed list of matters
should be included in a sworn affidavit:
1. The date when the
supposed deceased was last heard from.
2. Specific evidence
tending to indicate that the individual is dead, such as:
(a) the circumstances
surrounding the disappearance,
(b) lack of communication
with people who were likely to hear from him or her, including last known
correspondence or communication, and
(c) the length of time
since disappearance.
3. Except in exceptional
circumstances, the applicant should advertise for information concerning the
whereabouts of the supposed deceased.
4. Where possible, the
applicant should arrange for search-and-rescue authorities to confirm, by way
of affidavit if possible, that attempts were made to locate the individual, but
were fruitless.
5. The applicant should
set out the full background relating to the disappearance, including the
background as to the supposed deceased’s age and health (including mental
health).
6. The applicant should
also arrange for the details to be corroborated as much as possible by a family
member.
7. The applicant’s
affidavit should set out the next-of-kin entitled to distribution of his assets
on his death. 8.
The applicant must aver their belief that the individual is dead. [paragraph
1.115]
5.04
The Commission also provisionally recommends that, in determining
whether a presumption of death is to be ordered, all the circumstances surrounding
the disappearance must be taken into account, including the following:
(a) the time, location, and circumstances of
the disappearance
(b) the extent and nature of post-disappearance
searches
(c) a prior history of fraud
(d) the presence or absence of a motive for the
missing person to remain alive but disappear
(e) the time between a life insurance policy
being obtained and the subsequent disappearance
(f) facts suggesting the disappearance was a
consequence of foul play and
(g) abandonment of valuable property. [paragraph
1.116]
5.05
The Commission provisionally recommends that it would be
appropriate to include provision in the proposed mental capacity legislation
for limited administration of the property of a missing person, in particular
in circumstances in which it could not be established that a presumption of
death order could be made. The Commission also provisionally
recommends that, pending the enactment of mental capacity legislation, an
application to appoint an administrator to manage the affairs of a missing
person, amounting to a limited grant of administration of the estate, could be
made to the Probate Office. An applicant would furnish the necessary
documentation to the Probate Office, who would then decide whether an
administrator should be appointed, subject to an appeal to the High Court.
[paragraph 1.126]
5.06
The Commission provisionally recommends that an
order to appoint an administrator to administer a missing person’s property may
only be made where: (a) it is not known whether the person is alive; (b)
reasonable efforts have been made to find the person; and (c) for at least 90
days, the person has not contacted (i) anyone who lives at the person’s
last-known home address or (ii) any relative or friend of the person with whom
the person is likely to communicate. [paragraph 2.43]
5.07
The Commission provisionally recommends that the
following persons may apply to be appointed as the administrator of the estate
or property of a missing person: (a) the missing person’s spouse or civil
partner; (b) the missing person’s cohabitant; (c) any other next of kin of the
missing person; (d) a creditor or (e) any other person (including, where
relevant, the State) with a sufficient interest. The Commission provisionally
recommends that this should also be the list of persons who may apply for a
declaration of presumed death. [paragraph 2.54]
5.08
The Commission provisionally recommends that an
administrator have limited and specified powers to administer the affairs of
the missing person for a period of up to two years, which can be extended for a
further two years. [paragraph 2.58]
5.09
The Commission provisionally recommends that, in
situations where death is virtually certain, there should be no minimum waiting
period before an application can be made to obtain a declaration of presumed
death. The Commission also provisionally recommends that this declaration could
be made by a coroner and would be identical to a standard declaration of death;
that it would authorise the applicant to register the death in the Register of
Deaths provided for under the Civil Registration Act 2004; and that it
would have the identical legal consequences that arise on the death of a
person. [paragraph 3.14]
5.10
The Commission provisionally recommends that, in
situations where death is highly probable, a declaration of presumed death may
be made in the High Court; that the declaration would authorise the applicant
to register the death in a Register of Presumed Deaths to be established for
this purpose under the Civil Registration Act 2004; and that it would
have the identical legal consequences that arise on the death of a person. [paragraph
3.19]
5.11
The Commission provisionally recommends that, in
respect of a person whose disappearance indicates that death is highly
probable, and where, by reason of absence from the
State or otherwise, it remains uncertain for a period of at least 7 years as to
whether a person is alive, it shall continue to be presumed that the person is
dead. [paragraph 3.27]
5.12
The Commission provisionally recommends that the
following persons may apply for a declaration of presumed death: (a) the
missing person’s spouse or civil partner; (b) the missing person’s cohabitant;
(c) any other next of kin of the missing person; (d) a creditor; or (e) any
other person (including, where relevant, the State) with a sufficient interest.
[paragraph 3.30]
5.13
The Commission provisionally recommends that a declaration of
presumed death should have the effect that a marriage or civil partnership has
come to an end. [paragraph 3.39]
5.14
The Commission provisionally recommends that a missing person who
has been declared presumed dead but who returns may apply to have a variation
order made by the High Court concerning his or her estate. The Commission
provisionally recommends that, subject to the specific provisions concerning
the making of such a variation order, it should not, in general have any effect
on rights to or in any property acquired as a result of a declaration of
presumed death. The Commission provisionally recommends that where a variation
order has been made, the Court must make such further order, if any, in
relation to any rights to or in any property acquired as a result of the declaration
of presumed death as it considers reasonable in all the circumstances. The
Commission also provisionally recommends that: (a) the variation order will
have no effect on any income accrued between the time of the issuing of the
declaration of presumed death and the variation order; and (b) that if a third
party acquires rights to or in the property, in good faith and for value, the
returning person may not bring a claim for the property against him or her. [paragraph 4.13]
5.15
The Commission provisionally recommends that the
question of whether a marriage remains valid if the missing person returns must
have regard to the specific circumstances arising and invites submissions as to
the precise basis for a determination in such cases. [paragraph 4.20]
5.16
The Commission provisionally recommends that the
question of whether a civil partnership remains valid if the missing person
returns must have regard to the specific circumstances arising and invites
submissions as to the precise basis for a determination in such cases. [paragraph 4.26]
5.17
The Commission provisionally recommends that
where an Irish citizen disappears while abroad an application may be made to
the High Court for (a) an order for the administration of the missing person’s
estate or (b) a declaration of presumed death. The Commission also
provisionally recommends that any such application should be subject to the
same criteria as apply where the person is presumed to have died in Ireland,
and that the High Court may also recognise any orders made in any other State
in connection with the disappearance abroad, subject to relevant rules
concerning proof of foreign documents, including in accordance with the 1961
Hague Apostille Convention. [paragraph 4.34]
5.18
The Commission provisionally recommends that, in
respect of a person who is ordinarily resident or habitually resident in
Northern Ireland for 12 months or who has been habitually resident or
ordinarily resident in this State for 12 months and who disappears while in the
State, or is believed to have disappeared in the State, an application may be
made to the High Court by any interested person who has been habitually
resident in the State for 12 months for any of the orders already provided for
in this Consultation Paper, namely: (a) a declaration of presumed death or (b)
an order for the administration of the missing person’s estate. The Commission
provisionally recommends that an application may also be made for the orders
already provided for in this Consultation Paper by a close relative of a missing
person where that missing person is a victim of violence within the meaning of
the Criminal Justice (Location of Victims’ Remains) Act 1999. The Commission
also provisionally recommends that the High Court may also recognise any orders
made in any other State in connection with the disappearance, subject to
relevant rules concerning proof of foreign documents, including in accordance
with the 1961 Hague Apostille Convention. [paragraph 4.47]
[1] Report on Third Programme of Law Reform 2008-2014 (LRC 86-2007), Project 37.
[2] The Commission does not, therefore, consider in this
Consultation Paper any criminal law aspects of the law of missing persons, such
as the existence of specific protocols and procedures for notifying missing
persons to the Garda Síochána Missing Persons Bureau
(established in 1982), or international co-operation and mutual assistance
between police forces through Europol or Interpol.
These issues were dealt with comprehensively in the 2009 Report of the Garda
Síochána Inspectorate, Missing Persons Review and Recommendations (2009),
available at www.garda.ie. Nor does the Consultation
Paper deal with criminal procedure matters such as that a prosecution for the
murder of a missing person may proceed in the absence of a body (the corpus
delicti), provided there is sufficient circumstantial evidence to establish
that death has occurred: see The People (Attorney General) v Thomas [1954]
IR 319 and The People (DPP) v Towson [1978] ILRM 122.
[3] Source: Garda Síochána Missing Persons Bureau, available
at www.garda.ie/Controller.aspx?Page=85&Lang=1 (last accessed 28 November
2011).
[4] Report of the Garda Síochána Inspectorate, Missing
Persons Review and Recommendations (2009), p.21, available at www.garda.ie.
[5] Source: Garda Missing Persons Bureau, available at http://www.garda.ie/Controller.aspx?Page=85&Lang=1.
[6] Available at http://www.missingpersons.ie/.
[7] James, Anderson and Putt, Missing Persons in Australia
(Australian Institute of Criminology, 2008) at 15.
[8] Holmes Living in Limbo: The Experiences of, and Impacts
on, the Families of Missing People (London: Missing People, 2008) at 11,
available at www.missingpeople.org.uk.
[9] The Child Abduction and Enforcement of Custody Orders
Act 1991 regulates the international civil law aspect of this area of
missing, abducted, children.
[10] See the discussion in Chapter 1, below.
[11] See the discussion in Chapter 1, below.
[12] See the discussion in Chapter 1, below.
[13] As discussed in Chapter 1, below, seven of the Disappeared
currently (November 2011) remain unaccounted for.
[14] The Presumption of Death (Northern Ireland) Act 2009,
discussed in detail in the Consultation Paper, includes specific provision for
the families of the Disappeared: see in particular Chapter 4.
[15] Supporting Families of Missing People: Existing Provisions
and the Missing Persons Taskforce Recommendations (UK
Houses of Parliament All-Party Parliamentary Group for Runaway and Missing
Children and Adults, 2011) at 4.
[16] Holmes Living in Limbo: The Experiences of, and Impacts
on, the Families of Missing People (London: Missing People, 2008) at 17.
[17] See Boss “Ambiguous Loss: Working with Families of the
Missing” (2002) 41 Family Process 14-17, and Boss, “Ambiguous Loss in
Families of the Missing” The Lancet Vol 360, December 2002, at 39-40.
[18] Wayland, Supporting Those who are Left Behind: A Counselling
Framework to Support Families of Missing Persons (Australian Federal Police
National Missing Persons Coordination Centre, 2007) at 8.
[19] See the discussion of section 18 of the 2009 Act in Chapter
1, below.
[20] Holmes Living in Limbo: The Experiences of, and Impacts
on, the Families of Missing People (London: Missing People, 2008) at 32.
[21] Biehal, Mitchell and Wade, Lost from View (The
Policy Press, 2003) at 45.
[22] [1961] IR 219, discussed below.
[23] Cummins, Without Trace – Ireland’s Missing (Gill
& Macmillan, 2010) at 231.
[24] See DPP v Stonehouse [1978] AC 55 and Report on
Inchoate Offences (LRC 99-2010), paragraphs 2.44-2.47.
[25] The inquest was held under section 15 of the English Coroners
Act 1988, which is broadly similar to section 23 of the Coroners Act
1962, both discussed below.
[26] See R v Darwin [2009] EWCA 860, in which the
English Court of Appeal examined in detail the background to what it described
as a “notorious” case.
[27] Oxford, “Suzy Lamplugh ‘declared dead’ by her family” The
Independent 28 July 1993. Her parents also established the Suzy Lamplugh
Trust, which promotes general personal safety and which also led to the
inauguration in England of a national personal safety day. Many workplace-based
policies on lone working are also often referred to as “Suzy Lamplugh
policies.”
[28] Both the 1977 and 2001 incidents were discussed in the
Meeting of the Council of Europe Working Party on Missing Persons (5-7 November
2008), paragraph 6, available at www.coe.org. The Working Party’s deliberations
led to the Council of Europe 2009 Recommendation on Missing Persons, discussed
below.
[29] Holmes, Living in Limbo: The Experiences of, and
Impacts on, the Families of Missing People (London: Missing People, 2008)
at 16.
[30] Cohen, McCormick and Plecas, A Review of the Nature and
Extent of Uncleared Missing Persons Cases in British Columbia (School of
Criminology and Criminal Justice, University College of the Fraser Valley,
British Columbia, 2008) at 1-2.
[31] James, Anderson and Putt, Missing Persons in Australia
(2007) at 4.
[32] Guidance on the Management Recording and Investigation
of Missing Persons (English Association of Chief Police Officers, 2005) at
paragraph 1.1.
[33] See O’Halloran, “Daughter tells of pain over missing
mother” Irish Examiner 23 February 2011.
[34] The 2000 Report of the Coroners Review Group is
available at www.justice.ie.
[35] The Commission has drawn on the detailed discussion of the
common law rule and relevant case law in Ireland contained in Power “Body of
Evidence,” Gazette, Law Society of Ireland, April 2004, p.18.
[36] Report on the Reform and Modernisation of Land
Law and Conveyancing Law (LRC 74-2005).
[37] Guidelines to Area Managers and Inspectors:
Widow's/Widower's Pensions (Contributory and Non-Contributory) (October
2008), available at www.welfare.ie/EN/OperationalGuidelines/Pages/swi_widorph.aspx.
[38] (1869) IR 5 Eq 1.
[39] Ibid at 12.
[40] The headnote to the case ((1869) IR 5 Eq 1, at 1) refers to
the Court “following the analogy of the Statute (7 W.3, c.8, s.1)” and this is
the only specific reference in the case to section 1 of the Life
Estates Act 1695. It is notable that Chatterton V-C referred to “the
Statutes” so he may also have had in mind the 7 year rule in the Offences
Against the Person Act 1861.
[41] [1961] IR 219.
[42] Ibid at 222.
[43] Ibid.
[44] (1909) 42 ILTR 116.
[45] (1902) 36 ILTR 173.
[46] “Wife of dead climber granted probate order” The Irish
Times 5 May 2000.
[47] (1909) 42 ILTR 116.
[48] See the discussion in Chapter 2 below of the specific
provisions enacted in this respect in English law.
[49] Power “Body of Evidence,” Gazette, Law Society of
Ireland, April 2004, 18, at 21.
[50] Council of Europe Recommendation CM/Rec (2009) 12 of the
Committee of Ministers to Member States on Principles Concerning Missing
Persons and the Presumption of Death (9 December 2009).
[51] United Nations Conference on Declaration of Death of
Missing Persons, Lake Success New York, March - April 1950.
[52] United Nations Convention on the Declaration of Death of
Missing Persons, U.N. Doc A/Conf. 1/9.
[53] Article 1(1) of the 1950 UN Convention.
[54] Friedmann “Declarations of Death – A New International
Convention” (1950) 25 St. John’s Law Review 18, at 25.
[55] ICCS Convention on Establishing Death, ICCS Convention No
10 (1966) (the Athens Convention).
[56] Council of Europe Recommendation CM/Rec (2009) 12 of the
Committee of Ministers on Principles Concerning Missing Persons and the Presumption
of Death (9 December 2009), available at www.coe.org.
[57] Article 1 of the ICCS Convention on Establishing Death,
ICCS Convention No 10 (1966).
[58] Council of Europe Draft Recommendation CM/Rec (2008) 8
of the Committee of Experts on Family Law Working Party on Missing Persons (5-7
November 2008) at paragraph 6.
[59] Ibid at paragraph 7.
[60] Ibid.
[61] Principle 1, Council of Europe Recommendation CM/Rec
(2009) 12 of the Committee of Ministers to Member States on Principles
Concerning Missing Persons and the Presumption of Death (9 December 2009).
[62] Section 5A of the Guardianship and Administration Act
1986.
[63] Absentees Act 1990.
[64] See O'Halloran, “Family glad of closure at inquest into
‘disappeared’” Belfast Telegraph, 22 September 2011 (inquest into
death of two “Disappeared” whose bodies had been recovered).
[65] Department of Finance and Personnel, Missing Persons A
Consultation by the Department of Finance and Personnel on the Draft
Presumption of Death Bill (Northern Ireland) 2008 (January 2008), Foreword,
at ii.
[66] Department of Finance and Personnel, Missing Persons A
Consultation by the Department of Finance and Personnel on the Draft
Presumption of Death Bill (Northern Ireland) 2008 (January 2008).
[67] Department of Finance and Personnel, Presumption of
Death Bill (Northern Ireland) 2008 Report on Consultation (May 2008).
[68] Department of Finance and Personnel, Missing Persons A
Consultation by the Department of Finance and Personnel on the Draft
Presumption of Death Bill (Northern Ireland) 2008 (January 2008) at 31.
[69] Ibid at paragraphs 7-8.
[70] See R v Darwin [2009] EWCA 860.
[71] “When is a missing person declared dead?”, BBC News
Magazine, 5 December 2007, available at http://news.bbc.co.uk/2/hi/uk_news/magazine/7128867.stm.
[72] [1953] 1 WLR 1323.
[73] [1956] P 259. See also Bayes-Walker v Bayes-Walker [2010] EWHC 3142 (Ch).
[74] (1869) IR 5 Eq 1.
[75] Parliamentary Inquiry Session Two Resolving a Missing
Person’s Practical Affairs: Presumption of Death
(All-Party Parliamentary Group for Runaway and Missing Children and Adults
2011), 12.
[76] See Inquiry: Support for
Families of Missing People Report with Recommendations (All-Party
Parliamentary Group For Runaway and Missing Children and Adults 2011), 21.
[77] (1937) 59 CLR 395.
[78] Ibid at 405.
[79] [2006] QSC 250.
[80] [2009] SASC 176.
[81] Ibid at paragraphs 20 - 23.
[82] Section 54 of the Trustee and Guardian Act 2009.
[83] Section 5A of the Guardianship and Administration Act
1986.
[84] Section 8AA of the Guardianship and Management of
Property Act 1991.
[85] The Government Legislation Programme Autumn Session 2011,
available at www.taoiseach.ie, proposes to publish a Mental Capacity Bill in
early 2012. This would implement the thrust of the recommendations in the
Commission’s Report on Vulnerable Adults and the Law (LRC 74-2006) which
included recommendations to enact legislation comparable to the adult
guardianship legislation already in place in, for example, Australia and
Canada.
[86] Section 60(AB)(2) Guardianship and Administration Act
1986. A virtually identical provision is contained in section 54(2) of the NSW
Trustee and Guardianship Act 2009 and section 8AA of the Guardianship
and Management of Property Act 1991.
[87] Section 60(AE) of the Guardianship and Administration
Act 1986.
[88] Rosewall (Guardianship) [2010]
VCAT 1994.
[89] Manitoba, Saskatchewan, Newfoundland & Labrador, New
Brunswick, Nova Scotia and British Colombia.
[90] Section 2(1) of the Manitoba Presumption of Death Act 1988.
This section is mirrored in: section 15(3) of the Missing Persons and
Presumption of Death Act (2009) (Saskatchewan); section 2(1) of the
Presumption of Death Act (1974) (New Brunswick); section 3(1) of the Presumption
of Death Act (1996) (Newfoundland and Labrador); section 3(1) of the Presumption
of Death Act (1989) (Nova Scotia); and section 3(1) of the Survivorship
and Presumption of Death Act (British Columbia).
[91] [2007] BCJ No. 1573.
[92] [2004] BCJ No. 73.
[93] Ibid at paragraphs 24 - 27.
[94] Ibid at paragraph 35 (Crawford J.).
[95] [2006] BCJ No. 2703.
[96] Re Schmidt, 12 BCLR (2d) 186
(Court of Appeal).
[97] Re Cyr [2006] BCJ No. 2703, at paragraph 2.
[98] Section 2(5) of the Declaration of Death Act 2002.
[99] [1996] 92 OAC 19.
[100] Ibid at paragraph 9.
[101] Ibid at paragraphs 8 - 10.
[102] Ibid at paragraph 11.
[103] Ibid at paragraph 14.
[104] Section 94(1) of the Surrogate Rules Alta
Reg 130 (1995).
[105] [2010] AJ No. 1008.
[106] Ibid at paragraph 58.
[107] [2008] ABQB 487.
[108] Absentees Act 1990.
[109] Articles 84-102 of the Quebec Civil Code and section 3(1)
of the Presumption of Death Act 1974 (New Brunswick).
[110] Re Taylor [1925] 27 OWN 497.
[111] Section 1 of the Absentees Act 1990. Article 84 of
the Quebec Civil Code has a similar broad provision: “An absentee is a person
who, while he had his domicile in Québec, ceased to appear there without
advising anyone, and of whom it is unknown whether he is still alive.”
[112] (1909) 42 ILTR 116, discussed above.
[113] Power “Body of Evidence,” Gazette, Law Society of
Ireland, April 2004, 18, at 21.
[114] [2010] AJ No. 1008.
[115] Ibid at paragraph 58.
[116] Payne, “Understanding ‘Going Missing’: issues for social
work and social services” British Journal of Social Work (1995) 25(3) at
343-344.
[117] Howard, Protecting the Estates of Missing Persons – A
submission to the Victorian Law Reform Commission’s Review and Administration
Act 1986 (Vic), 14 May 2010, 9.
[118] Holmes, Living in Limbo: The Experiences of, and Impacts
on, the Families of Missing People (London: Missing People, 2008).
[119] Available at http://news.bbc.co.uk/1/hi/england/hampshire/7859110.stm.
[120] Available at http://lauthmissingpersons.com/blog/2011/03/parliamentary-law-review-for-relatives-of-missing/.
[121] The Government Legislation Programme Autumn Session 2011,
available at www.taoiseach.ie, proposes to publish a Mental Capacity Bill in
early 2012. This would implement the thrust of the recommendations in the
Commission’s Report on Vulnerable Adults and the Law (LRC 74-2006) which
included recommendations to enact legislation comparable to the adult
guardianship legislation already in place in, for example, Australia and
Canada.
[122] Section 54 of the Trustee and Guardian Act 2009 (New
South Wales); Section 5A of the Guardianship and Administration Act 1986 (Victoria);
Section 8AA of the Guardianship and Management of Property Act 1991 (Australian
Capital Territory).
[123] Articles 84-102 of the Quebec Civil Code; Absentees Act
1990 (Ontario); section 3(1) of the Presumption of Death Act 1974 (New
Brunswick).
[124] Section 54 of the Trustee and Guardian Act 2009.
[125] Section 5A of the Guardianship and Administration Act
1986.
[126] Section 8AA of the Guardianship and Management of
Property Act 1991.
[127] The Government Legislation Programme Autumn Session 2011,
available at www.taoiseach.ie, proposes to publish a Mental Capacity Bill in
early 2012. This would implement the thrust of the recommendations in the
Commission’s Report on Vulnerable Adults and the Law (LRC 74-2006) which
included recommendations to enact legislation comparable to the adult
guardianship legislation already in place in, for example, Australia and
Canada.
[128] Re Gell [2005] NSWSC 566 at paragraph 5.
[129] Re Gell [2005] NSWSC 566 at paragraph 6.
[130] Ibid.
[131] A similar provision is contained in the section 54(2) NSW
Trustee and Guardianship Act 2009 and section 8AA of the Guardianship
and Management of Property Act 1991 Australian Capital Territory.
[132] Re Gell [2005] NSWSC 566 at paragraph 6.
[133] Ibid at paragraph 9.
[134] Section 54(4) of the Trustee and Guardian Act 2009
permits the submission of evidence by an applicant when making the application
for the appointment of an administrator “in such form and in accordance with
such procedures as the Court thinks fit.”
[135] [2005] NSWSC 566.
[136] [2005] NSWSC 560.
[137] Ibid at paragraph 15.
[138] [2005] NSWSC 566.
[139] Ibid at paragraph 10.
[140] Ibid.
[141] Re Gell [2005] NSWSC 566 at paragraph 12.
[142] Re Gell [2005] NSWSC 566 at paragraph 13.
[143] Section 60AB(1) of the Guardianship and Administration
Act 1986 Victoria. Also see section 54(2) NSW Trustee and Guardianship
Act 2009 and section 8AA(1) of the Guardianship and Management of
Property Act 1991 Australian Capital Territory.
[144] Section 8AA(1)(d) of the Guardianship and Management of
Property Act 1991 Australian Capital Territory.
[145] For example, see section 47(1) of the Guardianship and
Administration Act 1986 Victoria.
[146] Section 44 of the Guardianship and Administration Act
1986 Victoria. See also section 72 of the Guardianship and Management of
Property Act 1991 Australian Capital Territory.
[147] Re Gell [2005] NSWSC 566 at paragraph 30.
[148] Section 60AE of the Guardianship and Administration Act
1986 Victoria; section 8AC(4) of the Guardianship and Management of Property
Act 1991 Australian Capital Territory.
[149] Section 8AC(1) of the Guardian and Management of
Property Act 1991 Australian Capital Territory; sections 57 and 67 of the NSW
Trustee and Guardian Act 2009.
[150] Section 56 of the NSW Trustee and Guardian Act 2009;
section 8AA(4) of the Guardian and Management of Property Act 1991 Australian
Capital Territory; section 48(1) of the Guardian and Administration Act 1986
Victoria.
[151] Section 4(2) of the Guardianship and
Management of Property Act 1991 Australian Capital Territory.
[152] Section 60AB Guardian and Administration Act 1986 Victoria.
Also see section 56(a) of the NSW Trustee and Guardian Act 2009 which
states that the guardian must exercise “all functions necessary and
incidental to its [the estate’s] management and care.”
[153] Re Gell [2005] NSWSC at paragraph 16.
[154] Section 60AB Guardian and Administration Act 1986 Victoria.
Also see sections 59 and 65 of the NSW Trustee and Guardian Act 2009.
[155] Section 60AD(1) of the Guardianship and
Administration Act 1986 Victoria; sections 91 and 93 of the NSW Trustee
and Guardianship Act 2009; sections 29 and 30(A) of the Guardianship and
Management of Property Act 1991 Australian Capital Territory.
[156] Rosewall (Guardianship) [2010] VCAT 1994.
[157] Mr.
Rosewall’s car was subsequently found abandoned and despite an extensive
search, he had not been located at the time of the hearing.
[158] Ibid at paragraph 30.
[159] Rosewall (Guardianship) [2010] VCAT 1994 at paragraph 9.
[160] Ibid.
[161] Ibid at paragraphs 30 – 31.
[162] Rosewall (Guardianship) [2010] VCAT 1994.
[163] Ibid at paragraph 40.
[164] Absentees Act 1990.
[165] Articles 84-102 of the Quebec Civil Code. See also section
3(1) of the Presumption of Death Act 1974 (New Brunswick).
[166] Re Taylor [1925] 27 OWN 497.
[167] Article 87 of the Quebec Civil Code.
[168] Section 2 of the Absentees Act 1990. See also
Graham, “The Absentees Act: It Could Happen to You” 12(4) (2008) The
Probater.
[169] Kamboj v Kamboj (2007) CanLII 14932 (Ontario SC) at
paragraph 20.
[170] Section 1 of the Absentees Act 1990. Article 84 of
the Quebec Civil Code has a similar broad provision: “An absentee is a person
who, while he had his domicile in Québec, ceased to appear there without
advising anyone, and of whom it is unknown whether he is still alive.”
[171] McCarthy (1923) OLR 482 at
paragraph [10].
[172] (2007) CanLII 14932 (Ontario SC).
[173] Ibid at paragraph 35.
[174] Kamboj v Kamboj (2007) CanLII
14932 (Ontario SC) at paragraph 37.
[175] (2008) Ontario Superior Court of Justice, Ct. File No.
05-42/0.
[176] Ibid at paragraph 6.
[177] Section 3 of the Absentees Act 1990 and article 90
of the Quebec Civil Code.
[178] Section 60(AE) Guardianship and Administration Act 1986.
[179] (2007) CanLII 14932 (Ontario SC).
[180] Section 60(AE) Guardianship and Administration Act 1986.
[181] Article 87 of the Quebec Civil Code.
[182] Re Doherty [1961] IR 219 at
222.
[183] Committee of Experts on Family Law, Study On Missing
Persons, Presumption of Death and Commorientes Following, In particular,
terrorist attacks and natural disasters(Strasbourg 20th November
2007) at 12 – 13.
[184] Section 1(2)(b)(i) of the Presumption of Death (Northern
Ireland) Act 2009.
[185] Section 1(3) of the Presumption of Death (Northern
Ireland) Act 2009.
[186] Section 1(2)(b)(ii) of the Presumption of Death (Northern
Ireland) Act 2009 also allows a “close relative” of the a member of the
‘Disappeared’ to bring a presumption of death application.
[187] Sections 1(3)(i) and 1(5) of the Presumption of Death
(Scotland) Act 1977.
[188] Section 2(1)(d) of the Presumption of Death Act (New
Brunswick) 1974.
[189] Article 92 of the Quebec Civil Code.
[190] See section 29(2) of the State Property Act 1954.
[191] Section 1 of the Declaration of Death Act 2002
(Ontario).
[192] Section 60(AE) Guardianship and Administration Act 1986.
[193] Section 65 of the NSW Trustees and Guardianship Act 2009
(NSW).Similar provisions are contained in section 8(AA) of the Guardianship
and Management of Property Act 1991 (ACT), and section 49 of the Guardianship
and Administration Act 1986 (Victoria).
[194] Article 88 of the Quebec Civil Code.
[195] Section 6 of the Absentees Act 1990. Also see
section 32(1) of the Substitute Decisions Act 1992.
[196] Section 10(1) of the Succession Act 1965. See
Keating, Keating on Probate 3rded (Thomson Round Hall 2007)
at page 225 at paragraph [15-01].
[197] That is, unless section 23 of the Coroners Act 1962,
discussed in Chapter 1, applies.
[198] See the discussion in Chapter 1, above.
[199] (1909) 42 ILTR 116, discussed in Chapter 1, above.
[200] See the discussion in Chapter 1, above, of the 2009 Act
and of the guidelines published by the Department of Social Protection
concerning the widow’s and widower’s benefit.
[201] Presumption of Death (Scotland) Act 1977.
[202] Presumption of Death (Northern
Ireland) Act 2009.
[203] Sections 4-7 of the Verschollenheitsgesetz 1939.
[204] Sections 3(1)-(2) of the Verschollenheitsgesetz 1939.
[205] Section 2(1.7)(a) of the New York State Code.
[206] Section 53(9)(1) of the Georgia State Code.
[207] Department of Finance and Personnel, Missing Persons A
Consultation by the Department of Finance and Personnel on the Draft
Presumption of Death Bill (Northern Ireland) 2008, (January 2008) at
paragraph 40.
[208] Principle 4 of the Council of Europe Recommendation CM/Rec
(2009) 12 of the Committee of Ministers to Member States on Principles
Concerning Missing Persons and the Presumption of Death (9 December 2009).
[209] (1909) 42 ILTR 116, discussed in Chapter 1, above.
[210] (1909) 42 ILTR 116, discussed in Chapter 1, above.
[211] Article 1:426 Dutch Civil Code. See also Chorus et al, Introduction to
Dutch Law (Kluwer Law International 2006), at 101.
[212] Section 2(1)(a) of the Presumption of Death (Northern
Ireland) Act 2009.
[213] See paragraph 1.115, above.
[214] See paragraph 1.116, above.
[215] The Commission notes that, in
Scotland, all declarations of presumed death are entered on the Register for
Births, Deaths and Marriages.
[216] See paragraph 1.115, above.
[217] See paragraph 1.116, above.
[218] See the discussion in Chapter 1, above, of the 2009 Act and
of the guidelines published by the Department of Social Protection concerning
the widow’s and widower’s benefit.
[219] Presumption of Death (Scotland) Act 1977.
[220] Presumption of Death (Northern
Ireland) Act 2009.
[221] Dutch Civil Code, Article 1:413 (1) and (2).
[222] Turkish Civil Code, Article 32.
[223] Swiss Civil Code, Article 35.
[224] Verschollenheitsgesetz (1939), Article 3:1-2.
[225] Spanish Civil Code, Articles 193-198.
[226] See www.missingpersons.ie.
[227] See www.citizensinformation.ie.
[228] Cretney, Principles of Family Law 4th ed
(Sweet & Maxwell 1984) at 223.
[229] See Lowe and Douglas, Bromley’s Family Law 10th
ed (Oxford 2007) at 1087, and Breslauer, “Foreign Presumptions and Declarations
of Death and English Private International Law”, 10 MLR 122, at 135-136.
[230] Section 5 of the Family Law (Divorce) Act 1995.
[231] The Commission notes that section 4(1)(c) of the Canadian Divorce
Act 1985 allows for one party to obtain a divorce if they have no knowledge
of the whereabouts of the other party for three years.
[232] Section 110 of the Civil Partnership and Certain
Rights and Obligations of Cohabitants Act 2010.
[233] See Lowe and Douglas, Bromley’s Family Law 10th
ed (Oxford 2007) at 1087.
[234] See Lowe and Douglas, Bromley’s Family Law 10th
ed (Oxford 2007) at 1088. See Parkinson v Parkinson [1939] P 414, where it was held that the petitioner must provide
evidence to show that the missing spouse had died, and Tweney v Tweney [1946]
P 180, in which both the spouse and her second husband had carried out
extensive enquiries as to the whereabouts of the spouse’s first husband.
[235] Section 68 of the English Civil Partnership Act 2004 states
that the order is conditional at first. The waiting period before this order is
made conclusive is six weeks, unless otherwise provided for by the Lord
Chancellor.
[236] Section 3 of the Presumption of Death (Northern Ireland)
Act 2009.
[237] Section 3(1) of the Presumption of Death (Scotland) Act
1977.
[238] Article 88 of the French Civil Code.
[239] Sections 5 and 6 of the Presumption of Death (Scotland)
Act 1977.
[240] Section 5(2) of the Survivorship and Presumption
of Death Act 1996.
[241] Section 6(2) of the Presumption of Death Act (New
Brunswick) 1974.
[242] Section 5(1)-(2) of the Presumption of Death (Northern
Ireland) Act 2009.
[243] Section 4(1) of the Presumption of Death (Scotland) Act
1977.
[244]
Section 5(2) of the Survivorship and Presumption of Death Act 1996.
[245] Section 6(2) of the Presumption of Death Act (New
Brunswick) 1974.
[246] See paragraph 3.39, above.
[247] Section 3 of the Presumption of Death (Northern
Ireland) Act 2009.
[248] Section 3 of the Presumption of Death (Northern Ireland)
Act 2009.
[249] Section 55 of the Civil Partnership Act 2004.
[250] Section 161(c)(1) of the Civil
Partnership Act 2004.
[251] Section 161(2) of the Civil Partnership Act 2004.
This may, however, be shortened by the Court in its discretion.
[252] Freidmann “Declarations of Death – A New International
Convention” (1950-51) 25 St. John’s Law Review 18.
[253] Council of Europe, Meeting of the Committee of Experts on
Family Law Working Party on Missing Persons (26-28 September 2007) at
paragraphs 10-11.
[254] (1909) 42 ILTR 116, discussed in Chapter 1, above.
[255] “Wife of dead climber granted probate order” The Irish
Times 5 May 2000.
[256] The Commission discussed the 1961 Hague Convention,
commonly known as the Apostille Convention, in detail in its Report on the Hague
Convention on Abolishing the Requirement of Legalisation for Foreign Public
Documents (LRC 48-1995) and more generally in its Report on Aspects of
Intercountry Adoption (LRC 89-2008), at paragraphs 4.18-4.20.
[257] Principle 2 of the Council of Europe Recommendation CM/Rec
(2009) 12 of the Committee of Ministers to Member States on Principles
Concerning Missing Persons and the Presumption of Death (9 December 2009).
[258] Section 1(2)(a) The Presumption of Death (Northern
Ireland) Act 2009.
[259] Section 1(3)(a) The Presumption of Death (Scotland) Act
1977.
[260] Section 1(2)(b) of the Presumption of Death (Northern
Ireland) Act 2009 and section1(3)(b) of the Presumption of Death
(Scotland) Act 1977.
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