Missing – presumed dead

A little known statute deals with the sad situation when a person cannot be traced and all obvious
lines of enquiry produce no result. The Presumption of Death Act 2013 allows the court to make
an order that a person is to be presumed dead, and its declaration is then valid and effective
“against all persons and for all purposes”.

But precisely when did he die? There are obvious problems in fixing the date of the presumed
death and this, of course, can be of vital significance to the question of entitlement to property.
The recent case of Johnson v No Named Defendant [2020] EWHC 207 is an example of the very
difficulties that can arise in relation to the date of death. Section 2 of the Act provides that if the
court is satisfied that the missing person has died, or has not been known to be alive for a period
of at least seven years, it must make a finding “as to the date and time of the missing person’s
death”.

However, subsections (3) and (4) provide that if the court is uncertain as to the exact moment
when missing person died it MUST rule that the missing person is presumed to have died at the
end of the seven-year period beginning with the day on which he or she was last known to be
alive.

In the Johnson case, Ronald Johnson applied for an order that his brother, Norman, should be
presumed to have died. The facts were that, in March 2011, Norman – aged 70 and in the early stages of dementia – had gone to a dance class but never returned home. He was still able to drive and had phoned his civil partner, Colin, after the class to say that his car must have been stolen and so he was walking
home. Colin considered that Norman had simply forgotten where he had left it and, indeed, it was
found parked close by the dance class venue.

In view of Norman’s age and health, Colin immediately reported the facts to the police. Searches
were made for him without any success. Norman’s disappearance was covered in local
newspapers and was also registered with the UK Missing Persons Bureau. His disappearance was
never matched to any body subsequently found, and no one who might have been expected to
hear from him (including Ronald and Colin) had ever done so.

The property in which Norman and Colin lived together was jointly owned by them. Colin,
probably on advice, severed the beneficial joint tenancy in that property in 2016 and died in
December 2017.
Norman had made a will in 1996, but this was revoked by the civil partnership he entered into
in 2008. So, at the time of his disappearance he would have been intestate. He had no children.
It was critical to establish the date at which Norman’s death was presumed to have taken place,
because the date affected who was entitled to his estate.
1. Before the joint tenancy was ended in 2016. If Norman died prior to the severance of
the joint tenancy in the house, then Colin (and now his estate) would be entitled by
survivorship to the whole of the beneficial interest in that property.
2. After severance of the joint tenancy, but before Colin’s death in December 2017. If
Norman died after the severance of the joint tenancy – but before Colin’s death – Colin,
as surviving civil partner (and now Colin’s estate), would be entitled to Norman’s estate
on intestacy.
3. After Colin’s death in December 2017, being also, therefore, after the severance, Norman’s half share would pass by his intestacy to Ronald and a third brother, Brian. He did not inherit Colin’s half share because Colin had made a Will leaving his estate elsewhere.
The terms of the various sections led the judge to reach the curious conclusion that Norman had died at the exact the time and date of his decision namely 11.20 on Friday 5th February 2020, even though this bore little chance of being the correct date. Missing persons obviously are more likely to have died at the beginning of their period of absence rather than at the end of it.

It must also be noted that the combination of this ruling and the 2013 statute also has a bearing on the payment of pensions – or repayment of installments that might be deemed to have been over paid.