Posts tagged ‘disappearance’

June 11, 2012

We Can’t Find the Deceased

While luckily rare, from time to time we need to deal with situations where a person has simply disappeared.  How do we deal with the estate?  Most jurisdictions have legislation in place to deal with this possibility.  In Ontario, under the Declarations of Death Act, 2002 (the “Act”), the Court can, on application by an interested party (a defined term) make an order declaring that an individual has died.  Under s. 2(4) and 2(5), the Court can make such an order if it is satisfied that either:

            s. 2(4)

(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.

or;

            s. 2(5)

(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

(e)        there is sufficient evidence to find that the individual is dead.

 In both instances, all of the elements of the section must be established.  Of course s. 2(4) allows for a declaration to be made much earlier, but requires an applicant to show that the person “disappeared in circumstances of peril”.  Such circumstances cannot be exhaustively defined and the Courts have found little guidance from the caselaw.  In Poole v. Poole, the Court referenced some more obvious situations, such as disappearance while on a boat where only an empty boat is found, or while climbing in an avalanche zone.  However, that Court also found that circumstances of peril will, in proper circumstances, include “severe depression and risk of suicide”.  Using the Oxford English Dictionary definition of “peril” as “a situation of serious and immediate danger”, the Court held that a psychiatrist’s finding that a person was “in real danger of harming himself” was sufficient to categorize a suspected suicide (where no body was found) as circumstances of peril.

The date of death will often be important as it may determine whether a party or his or her issue do or do not have a right to share in a deceased’s estate (for example where a will requires that a beneficiary survive the testator for a period of time and the beneficiary has died prior to the application under the Act).  Subsection 2(8) of the Act states that the order of the Court declaring a person deceased shall state the date of death, which shall be:

(a)        the date upon which the evidence suggests the person died, if subsection 2(4) applies; or

(b)        the date of the application, if subsection 2(5) applies

 However the Act does leave discretion for the Court to declare a date of death other than that required by subsection 2(8) if the Court is of the opinion that it would be just to do so in the circumstances and that it would not cause inconvenience or hardship to any of the interested persons.

What if he walks through the door?

Despite an order declaring a person dead, that person may one day show up – what then?  The Act strives for finality through s. 6, which states that if an order that applies for the purpose of dealing with an individual’s estate has been made under s. 2 and all or part of the estate has been distributed accordingly, the distribution is final even if the individual is afterwards discovered to be alive, and the individual is not entitled to recover the distributed property.  The section does allow discretion to the Court not to apply this section and require a reconveyance in appropriate circumstances, usually to prevent a fraud.

Other Legislation

One should be aware that other legislation also deals with presumptions of death, in particular s. 209 of the Insurance Act.