CHAPTER ONE – THRESHOLD FOR MAKING AN APPLICATION
Despite the wording of s.1(2) of the Act which provides that “any person may apply to the High Court for a declaration that the missing person is presumed to be dead.”, the Act does not confer a general right upon any person to apply to the court for a declaration that any other person is presumed to be dead. There are criteria that need to be met both in relation to the person making the application, and the missing person in respect of whom a declaration can be sought, and these threshold criteria need to be met before the court can hear the application.
Who can be an Applicant?
Only a person who has “a sufficient interest in the determination of the application” can bring an application for a declaration under the Act[1]. The following people are automatically assumed to have sufficient interest:
The missing person’s:
- Spouse
- Civil partner
- Parent
- Child
- Sibling (of the full or half-blood[2])
It should be immediately apparent that a person’s long-term partner and/or cohabitee is not included within the definition of persons with automatic ‘sufficient interest’. This omission led to the application in the case of Re P (Presumption of Death)[3] being issued in the name of the minor child of the missing person, with the child’s mother, the partner and cohabitee of the missing person, acting as the Litigation Friend. Mr Justice Poole noted that “a long-term cohabitee might be as close as anyone to the subject person and it seems unfortunate that D [the Litigation Friend] had to use her son as the claimant in order to ensure that the application would be determined.”
It is also noted that other family members such as grandchildren, aunts and uncles, nieces and nephews, and cousins are also not named as persons with automatic interest, and the Act is silent as to the status of step-parents and/or stepchildren. As such, these potential applicants will need to prove that they have sufficient interest.
Sufficient Interest
This is not defined in the Act and the explanatory notes to the Act state that “it is for the court to decide whether any interest is sufficient for the purposes of [s.1]”. Reported cases under the Act are not numerous, but those which have dealt with the issue of sufficient interest suggest that this is not a definition to be applied restrictively.
The first thing to remember when considering whether a potential applicant has sufficient interest is that the interest needs to relate to “the determination of the application”. It is not necessary that the applicant has a family, or even personal connection to the missing person. In the case of Reynolds v Saul[4], the applicant was a solicitor and the personal representative of the estate of Dennis Fullwood, having been appointed as an attorney to act in the administration of the estate on behalf of Madeline Fitzgerald, a relative of Mr Fullwood and a beneficiary of his estate. The missing person in respect of whom the declaration was sought was the co-owner of the property in which Mr Fullwood had lived. Neither the applicant nor Ms Fitzgerald had known Mr Fullwood during his lifetime and they knew nothing of the missing person save that she was the co-owner, on a joint tenancy basis, of the property. The court accepted that the applicant, as the personal representative of Mr Fullwood’s estate, had sufficient interest in the determination of the application as the estate “has a real and substantial interest in the question whether [the missing person] is presumed to have died, and when, for the purpose of ascertaining which of them is the survivor of the other and into whose estate [the property] falls.”
The court in Reynolds was referred to the case of In re Fisher[5] in which the applicant was a close friend of the missing person and one of the executors named in a will made by the missing person. In considering whether the applicant had standing to make the application, Judge Paul Matthews noted that family and close friends have emotional interest in each other’s lives, some people have a financial interest in the continued lives of others, some have a financial interest in the deaths of others, and the public itself, through aspects of government such as taxation or social security, may have an interest in the missing person. “How far the term ‘sufficient interest’ in the 2013 Act extends to these various interests, and indeed others, is a matter which should be decided on the usual casuistic basis.” The judge stated that the interest of a person in succeeding to the property of another on his death is a well-known interest, and accepted that “a person who intends to prove a testamentary paper does have a sufficient interest in applying for a declaration of presumption of death, even though the paper has not yet been proved.”
Who can be the subject of a declaration?
Pursuant to s.1 the missing person must fall into one of these categories:
- the missing person was domiciled in England or Wales on the day upon which (s)he was last known to be alive,
- the missing person was habitually resident in England or Wales throughout the period of 1 year, ending with the day upon which (s)he was last known to be alive,
- the applicant is the spouse or civil partner of the missing person and the applicant is domiciled in England or Wales on the day the application is made, or
- the applicant is the spouse or civil partner of the missing person and the applicant has been habitually resident in England or Wales throughout the period of 1 year, ending with the day upon which the application is made.
The concept of domicile is used in the usual common-law sense, and the standard of proof used throughout the Act is the civil standard of balance of probabilities[6]. An examination of the law of domicile is beyond the scope of this book, but the “Commentary on Sections” set out at the conclusion of the Act states at paragraph 15 that the conditions of domicile “require a certain connection with England and Wales” and that “Domicile is the legal concept used to connect a person to a legal jurisdiction, such as England and Wales. It defines where a person is deemed to have his or her permanent home.”
The need to satisfy the threshold requirement of domicile must not be forgotten and should be considered at the outset of any case. The application in Reynolds v Saul[7] failed as the applicant was unable to prove that the missing person fell into any of the categories above.
An application for a declaration cannot be made in respect of the reigning monarch[8].
Missing Person
It is appropriate at this stage to note that although the person in respect of whom the declaration is sought is described throughout the act as a ‘missing person’, this is a descriptive term, rather than an independent criterion to be satisfied. This is in contrast to an application under the Guardianship (Missing Persons) Act 2017[9].
The term ‘missing person’ is defined in s.20(1) of the Act as “the person who is or would be the subject of the declaration”.
In Reynolds v Saul[10], the subject of the application was Paulene Saul, a person about whom absolutely nothing was known save that she was named as the joint tenant of a flat which was connected to the estate the applicant was administering. All attempts to find any information about Ms Saul had been unsuccessful and the administrator made an application under the Act for a declaration that Ms Saul be presumed to have died seven years after 1 October 1973, the date of the transfer of the property into the joint names of Ms Saul and the deceased. The application failed due to an inability to prove the domicile of Ms Saul, but the court accepted that the applicant did not need to prove that Ms Saul was ‘missing’ in the usual sense of the word, and the fact that the applicant could not prove the existence of Ms Saul beyond her name on the documents relating to the purchase of the property was not a bar to an application under the Act.
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[1] s.1(5)
[2] s.20(1)
[3] [2021] EWHC 3099 (Fam)
[4] PT-2024-LDS-000054 (neutral citation awaited)
[5] [2023] EWHC 979 (Ch)
[6] Greathead v Greathead [2017] EWHC 1154 (Ch)
[7] PT-2024-LDS-000054 (neutral citation awaited)
[8] s.21(2)
[9] See chapter 11
[10] PT-2024-LDS-000054 (neutral citation awaited)