Presumption of Death (Scotland) Act 1977

JurisdictionUK Non-devolved
Citation1977 c. 27


Presumption of Death(Scotland) Act 1977

1977 CHAPTER 27

An Act to make fresh provision in the law of Scotland in relation to the presumed death of missing persons; and for connected purposes.

[22nd July 1977]

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:—

S-1 Action of declarator.

1 Action of declarator.

(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’.

(3) The Court of Session shall have jurisdiction to entertain an action of declarator if and only if—

(a ) 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; or

(b ) the pursuer in the action—

(i) is the spouse of the missing person, and

(ii) is 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.

(4) The sheriff court shall have jurisdiction to entertain an action of declarator if and only if—

(a ) 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; or

(b ) the 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 action.

(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.

S-2 Decree in action of declarator and determination of incidental questions in other proceedings.

2 Decree in action of declarator and determination of incidental questions in other proceedings.

(1) In an action of declarator, the court, having heard proof and being satisfied on a balance of probabilities that the missing person—

(a ) 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;

(b ) 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.

(2) The court, in granting decree under subsection (1) above, shall have power to—

(a ) determine the domicile of the missing person at the date of his death;

(b ) determine any question relating to any interest in property which arises as a consequence of the death of the missing person;

(c ) 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.

S-3 Effect of decree.

3 Effect of decree.

(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 marriage 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 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) 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.

S-4 Recall or variation of decree.

4 Recall or variation of decree.

(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.

(3) Any person having an interest may, in an application for a variation order, lodge a minute seeking the making by the court of any determination or appointment referred to in section 2 of this Act, which has not been sought by the person making the application for the variation order.

(4) At any stage of the proceedings the sheriff may, of his own accord or on the application of any party to the proceedings, and shall, if so directed by the Court of Session (which direction may be given on the application of any party to the proceedings), remit to the Court of Session an application made in the sheriff court for a variation order 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.

(5) Nothing in this section shall operate so as to revive a marriage of the missing person dissolved by virtue of decree in an action of declarator.

S-5 Effect on property rights of recall or variation of decree.

5 Effect on property rights of recall or variation of decree.

(1) Subject to the following provisions of this section, a variation order shall have no effect on rights to or in any property acquired as a result of a decree under section 2 of this Act.

(2) Notwithstanding the generality of subsection (1) above, where a decree under section 2 of this Act has been varied or recalled by a variation order, the court shall make such further order, if any, in relation to any rights to or in any property acquired as a result of that decree as it considers fair and reasonable in all the circumstances of the case; but no such further order shall affect any income accruing between the date of that decree and the date of the variation order.

(3) In considering what order shall be made under subsection (2) above, the court shall, so far as practicable in the circumstances, have regard to the following considerations, namely:—

(a ) that, in the case of any property which is being or has been administered under a trust, any person who on account of the variation order would, apart from subsection (1) above, have been entitled to rights to or in any such property, or any person deriving right from him, shall be entitled to have made over to him by the trustee in full satisfaction of these rights only—

(i) the said rights to or in any such property or other property for the time being representing it which is still in the hands of the trustee at the date of the variation order, and

(ii) the value, as at the date of distribution, of the said rights to or in any such property which has been distributed;

(b ) that any capital sum paid by an insurer as a result of the said decree (other than a capital sum which has been distributed by way of an annuity or other periodical payment) or any part of such sum should be repaid to the insurer if the facts in respect of which the variation order was pronounced justify such repayment.

(4) The court shall not make an order under subsection (2) above unless application for the variation order has been made to the court within the period of five years beginning with the date of the decree under section 2 of...

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