Foreign Presumptions and Declarations of Death and English Private International Law

DOIhttp://doi.org/10.1111/j.1468-2230.1947.tb00043.x
AuthorW. Breslauer
Publication Date01 Apr 1947
FOREIGN PRESUMPTIONS AND
DECLARATIONS
OF
DEATH AND
ENGLISH PRIVATE INTERNATIONAL
LAW
I
THE loss of human life which inevitably accompanies war gives
rise to special problems in the administration of the law. Some
of these problems result from the fact that combatants are
posted
missing presumed killed
’,
without the facts of their
death being ever established with certainty. The last war
showed that
missing presumed killed
persons need not
be
confined to soldiers. The deportation and extermination
policies
of
the Nazis
~
greatly multiplied civilian cases of that
kind. Six million Jews, and millions of others, of all nation-
alities, perished, and often the Nazis deliberately destroyed
all record of their victims’ deaths.
A
number of the victims had property in this country.
The question will frequently arise whether or not English law
will presume their deaths
;
more particularly, the extent to
which English private international law leads to the applica-
tion of foreign presumptions and declarations of death must
be examined.
Problems of this kind may be incidental in many cases.
This essay has to confine itself to discussing those circum-
stances where they are most likely to be met,
vix.,
the
following
:-
(1)
The death of
a
person may have to be established as
the essential preliminary to
a
grant of probate or of letters
of administration.
(2)
The claim of an applicant to such a grant may be
dependent on the death of others who would have
a
better
right if alive but who are missing at the time of the application.
(3)
The distribution of an estate will depend on the death
or survival of beneficiaries.
(4)
Similar questions may arise with reference
to
settle-
ments and contracts
inter
vivos.
(5)
The validity of an English marriage may depend on
the dissolution of any previous marriage through death or
legally equivalent facts.
122

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