Fake news; missing people and the 7 year rule
Fake news– when an adult gone missing they cannot be presumed to have died until 7 years after the date of their disappearance.
Further fake news– after 7 years has passed they are ‘automatically’ presumed to have died.
The 7 year ‘rule’ does have some basis in fact – the Presumption of Death Act 2013 does apply where a missing person “has not been known to be alive for a period of at least 7 years” but the Act also makes it clear that an application can also be made where a person who is missing “is thought to have died”. This means that, for example, in cases where a suicide note is left an application for a declaration of presumed death may be made to the High Court at any point after the disappearance.
The declaration can be obtained in the courts of England & Wales even if the missing person disappeared abroad, as long as certain conditions are met.
Certainly if the police take the view that the missing person has probably died then that will be persuasive evidence. The judge does not need to be satisfied 100% that death has occurred – just that on the balance of probabilities, i.e. more than 50%, it is more likely than not that the missing person has died.
It may be necessary to wait 7 years if there is no clear evidence one way or the other to suggest that the missing person has died. But waiting 7 years does not mean that anyone has an automatic right after that period to resolve their missing loved one’s affairs. An application still has to be made to Court under the Presumption of Death Act. Very often, waiting 7 years is completely impracticable for a left behind family living in a jointly owned property – or what can be worse, when the property is in the sole name of the missing person and their family faces repossession.
Another option is to apply to become a missing person’s guardian under the Guardianship (Missing Persons) Act 2017 , also known as ‘Claudia’s Law’. This Act enables someone close to the missing person to apply to the High Court for a guardianship order to manage their financial affairs in the hope that they are still alive and will one day return. Interestingly, the Act also applies to hostages held captive abroad. An application can be made after someone has been missing for more than 90 days (or sooner if there is an urgent issue).
The emotional toll of dealing with a loved one’s disappearance is difficult to comprehend. That can often be compounded by the minefield of dealing with the legal and financial implications. Dealing with a missing person’s overdrawn bank accounts, unpaid mortgages and credit cards can be deeply frustrating and upsetting.
The law can help with these practical issues but only if families understand the options that are available – so myth busting common misunderstandings really matters.