Presumption of Death Act 2013
| Year | 2013 |
Presumption of Death Act 2013
2013 CHAPTER 13
An Act to make provision in relation to the presumed death of missing persons; and for connected purposes.
[26th March 2013]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Declaration of presumed death
1 Applying for declaration
(1) This section applies where 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.
(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.
(3) The court has jurisdiction to hear and determine an application under this section only if-
(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive,
(b) the missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day, or
(c) subsection (4) is satisfied.
(4) This subsection is satisfied if the application is made by the spouse or civil partner of the missing person and-
(a) the applicant is domiciled in England and Wales on the day on which the application is made, or
(b) the applicant has been habitually resident in England and Wales throughout the period of 1 year ending with that day.
(5) The court must refuse to hear an application under this section if-
(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and
(b) the court considers that the applicant does not have a sufficient interest in the determination of the application.
(6) This section has effect subject to section 21(2).
2 Making declaration
(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person-
(a) has died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) It must include in the declaration a finding as to the date and time of the missing person's death.
(3) Where the court-
(a) is satisfied that the missing person has died, but
(b) is uncertain at which moment during a period the missing person died,
the finding must be that the missing person is presumed to have died at the end of that period.
(4) Where the court-
(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but
(b) is not satisfied that the missing person has died,
the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.
3 Effect of declaration
(1) A declaration under this Act is conclusive of-
(a) the missing person's presumed death, and
(b) the date and time of the death.
(2) A declaration under this Act is effective against all persons and for all purposes, including for the purposes of-
(a) the acquisition of an interest in any property, and
(b) the ending of a marriage or civil partnership to which the missing person is a party.
(3) But subsections (1) and (2) apply to a declaration only if-
(a) it has not been appealed against and the period for bringing an appeal has ended, or
(b) it has been appealed against and the appeal (and any further appeal) has been unsuccessful.
(4) For the purposes of subsection (3), an appeal has been unsuccessful if-
(a) it has been dismissed or withdrawn, and
(b) any period for bringing a further appeal has ended.
4 Other powers of court making declaration
(1) When making a declaration under this Act, the court may-
(a) determine any question which relates to an interest in property and arises as a result of the declaration, and
(b) determine the domicile of the missing person at the time of his or her presumed death.
(2) When making a declaration under this Act, the court may make such order as it considers reasonable in relation to any interest in property acquired as a result of the declaration.
(3) An order under subsection (2) may direct that the value of any interest in property acquired as a result of the declaration is not to be recoverable by virtue of an order made under section 7(2).
(4) It may, in particular, direct that the value of the interest-
(a) is not to be recoverable in any circumstances, or
(b) is not to be recoverable where conditions specified in the order are met.
Variation order
5 Varying and revoking declaration
(1) On an application by any person, a declaration under this Act may be varied or revoked by an order of the High Court (a "variation order").
(2) The court must refuse to hear an application for a variation order if it considers that the applicant does not have a sufficient interest in the determination of the application.
6 Effect of variation order
(1) A variation order does not affect an interest in property acquired as a result of a declaration under this Act (but see section 7).
(2) A variation order does not revive a marriage or civil partnership that was brought to an end by virtue of a declaration under this Act.
(3) Except as otherwise required by subsection (1) or (2)-
(a) where a variation order varies a declaration, subsections (1) and (2) of section 3 have effect in relation to the declaration as varied by the order, and
(b) where a variation order revokes a declaration, those subsections cease to have effect in relation to the declaration.
(4) But subsection (3) applies only if-
(a) the variation order has not been appealed against and the period for bringing an appeal has ended, or
(b) the variation order has been appealed against and the appeal (and any further appeal) has been unsuccessful.
(5) For the purposes of subsection (4), an appeal has been unsuccessful if-
(a) it has been dismissed or withdrawn, and
(b) any period for bringing a further appeal has ended.
7 Other functions of court making variation order
(1) When making a variation order, the court may-
(a) determine any question which relates to an interest in property and arises as a result of the variation order, and
(b) determine the domicile of the missing person at the time of his or her presumed death.
(2) When making a variation order, the court must make such further order (if any) as it considers reasonable in relation to any interest in property acquired as a result of the declaration varied or revoked by the order ("the original declaration") (but see subsections (3), (5) and (6)).
(3) The court must not make an order under subsection (2) if the application for the variation order was made after the end of the period of 5 years beginning with the day on which the original declaration was made, unless it considers that there are exceptional circumstances which make it appropriate to do so.
(4) In considering what order to make under subsection (2), the court must, as far as practicable, have regard to the principles in section 8.
(5) An order under subsection (2) does not affect income that accrued in the period-
(a) beginning with the day on which the original declaration was made, and
(b) ending with the day on which the variation order was made.
(6) An order under subsection (2) does not affect or provide grounds to challenge-
(a) a related good faith transaction, or
(b) an interest in property acquired under such a transaction.
(7) A "related good faith transaction" is a transaction under which a person acquires an interest in the property that is the subject of the order (or any part of it) in good faith and for value from-
(a) a person who acquired an interest in the property (or any part of it) as a result of the original declaration, or
(b) a person who acquired an interest in the property (or any part of it) from a person described in paragraph (a), whether directly or indirectly.
(8) Where a person has entitlement under a trust by virtue of an order under subsection (2), the trustee is liable to that person for any loss suffered by that person on account of any breach of trust by the trustee in the administration or distribution of all or part of the property that is the subject of the order.
(9) Subsection (8) does not apply to the extent that the trustee's liability is restricted under any enactment or by any provision in a deed regulating the administration of the trust.
(10) In subsection (9) "enactment" includes an enactment contained in-
(a) an instrument made under an Act, or
(b) an Act or Measure of the National Assembly for Wales or an instrument made under such an Act or Measure.
8 Principles
(1) These are the principles referred to in section 7(4).
(2) The first principle is relevant where property ("the relevant property") is being or has been administered under a trust.
(3) The first principle is that-
(a) a person who, but for section 6(1), would have an interest in the relevant property by virtue of a variation order, and
(b) a person who, but for section 6(1), would have acquired an interest in the relevant property from a person described in paragraph (a),
should be entitled to have made over to him or her by the trustee in full satisfaction of that interest the things listed in subsection (4).
(4) Those things are-
(a) the interest in the relevant property or an equivalent interest in property representing the relevant property, to the extent that such property is still in the hands of...
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