Presumption of Death (Scotland) Act 1977

JurisdictionUK Non-devolved
(1) Where 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, any person having an interest may raise an action of declarator of the death of that person (hereafter in this Act referred to as the “missing person”) in the Court of Session or the sheriff court in accordance with the provisions of this section.(2) An action such as is mentioned in subsection (1) above is, in this Act referred to as an “action of declarator".the missing person was domiciled in Scotland on the date on which he was last known to be alive or had been habitually resident there throughout the period of one year ending with that date; oris the spouseF2or civil partner of the missing person, andis domiciled in Scotland at the date of raising the action or was habitually resident there throughout the period of one year ending with that date.the provisions of subsection (3) (a) above are satisfied and the missing person’s last known place of residence in Scotland was in the sheriffdom; orthe provisions of subsection 3(b) above are satisfied and the pursuer was resident in the sheriffdom for a period of not less than forty days ending with the date of raising the actionF3; orthe two people concerned registered as civil partners of each other in Scotland; andit appears to the court to be in the interests of justice to assume jurisdiction in the case.the pursuer in the action and the missing person are married to each other and are of the same sex,they married each other in Scotland, andit appears to the court to be in the interests of justice to assume jurisdiction in the case.(5) Any person having an interest may, in an action of declarator, lodge a minute seeking the making by the court under section 2 of this Act of any determination or appointment not sought by the pursuer.(6) At any stage of the proceedings the sheriff may, of his own accord or on the application of any party to the action, and shall, if so directed by the Court of Session (which direction may be given on the application of any party to the action) , remit to the Court of Session an action of declarator raised in the sheriff court where he or, as the case may be, the Court of Session considers such remit desirable because of the importance or complexity of the matters at issue.has died, shall grant decree accordingly and shall include in the decree a finding as to the date and time of death:Provided that where it is uncertain when, within any period of time, the missing person died, the court shall find that he died at the end of that period;has not been known to be alive for a period of at least seven years, shall find that the missing person died at the end of the day occurring seven years after the date on which he was last known to be alive and shall grant decree accordingly.determine the domicile of the missing person at the date of his death;determine any question relating to any interest in property which arises as a consequence of the death of the missing person;appoint a judicial factor on the estate of the missing person notwithstanding (in relation to such an appointment by the sheriff) what the value of the estate may be.(3) Where, for the purpose of deciding any issue before it, a court or statutory tribunal has to determine any incidental question as to the death of a person, the court or tribunal may, if it thinks fit, determine that question (but for the purpose only of deciding that issue) ; and in the determination of that question the court or tribunal shall apply the criteria set out in subsection (1) above.(1) Subject to the provisions of this section and sections 4 and 5 of this Act, where no appeal is made against decree in an action of declarator within the time allowed for appeal, or where an appeal against such a decree has been made and refused or withdrawn, the decree shall be conclusive of the matters contained in the decree and shall, without any special form of words, be effective against any person and for all purposes including the dissolution of a marriageF4or of a civil partnership to which the missing person is a party and the acquisition of rights to or in property belonging to any person.(2) A decree under section 2(1) (b) of this Act or a determination as mentioned in section 2(3) of this Act shall not determine a substantive question which is properly referable to a foreign law otherwise than in accordance with that law.(3) Where a marriageF5or civil partnership to which the missing person is a party has been dissolved by virtue of decree in an action of declarator, F6its dissolution 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) Where the missing person or any other person has committed any crime or offence, the responsibility of that person therefor shall not be affected by the circumstance that decree in an action of declarator has been granted if the missing person was in fact alive at the date specified in the decree as the date of death.(1) Decree in an action of declarator may, on application made at any time by any person having an interest, be varied or recalled by an order of the court which granted the decree or, in a case to which subsection (4) below applies, by an order of the Court of Session.An order of the court pronounced under this subsection is hereafter in this Act referred to as a “variation order".(2) By a variation order the court may make any determination or appointment referred to in section 2 of this Act.

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