FREE CHAPTER from ‘A Practical Guide to Missing Persons and the Administration of Estates’ by James Fuller & Ollie Murrell

21/01/2026

CHAPTER ONE

INTRODUCTION

  1. Missing people

Dealing with and administering estates of or involving a missing person is not something that many trusts and estates practitioners will be familiar with. Aside from a handful of people, many will never think about missing people beyond the occasional news report, or the sensationalist books and television documentaries about public figures who have disappeared (e.g. Lord Lucan,[1] Richey Edwards of the Manic Street Preachers, and Grand Duchess Anastasia Romanov). Whilst the concept of a “missing person” may seem an unusual one to most, sadly people go missing, or cannot be traced, more than one would think. According to the statistics of the charity Missing People, in the United Kingdom there are nearly 350,000 reported missing incidents every year, over 170,000 people are reported missing every year, and someone is reported missing every 90 seconds.[2] Despite globalism, the advent of the internet and social media and increased monitoring of individuals, it is sadly still often impossible, or – as will be discussed – impractical, to trace individuals.

  1. Development of the law

In the 1700s and 1800s, the Courts of England and Wales were often called upon to deal with the estates of missing people. During this period, it was not uncommon for individuals, sometimes accompanied by their families, to leave England and Wales (as well as other parts of the United Kingdom) to take up posts in the colonies, dominions, mandates, protectorates, and other territories ruled or administered by the United Kingdom and its predecessor states. Similarly, the British Army and the East India Company would send those within its employ all over the world. A further category of person who would travel the world during this time were simply those doing so for personal reasons, such as tourism, leisure, exploration, adventure, or even in pursuit of riches. If any of these individuals failed to return, they would leave behind estates which required administration and create estates with missing beneficiaries. Those interested in such estates – in most cases, personal representatives or creditors – called on the Courts of Chancery, and subsequently the Chancery Division of the High Court, to seek directions.

A line of authorities emerged in the 1800s with two distinct functions: (i) to raise a presumption of death; and (ii) to permit personal representatives to distribute the estate on the basis a beneficiary had died at some prior point.[3] Parliament has now intervened. The enactment of the Presumption of Death Act 2013 (“PDA 2013”) has, for the most part, replaced the common law presumption of death principles and it is no longer possible to apply for a declaration of presumed death under legislation enacted prior to the PDA 2013 if that declaration can be made pursuant to the PDA 2013. The PDA 2013 has also diminished the scope of what became known as the “Benjamin Order” for missing beneficiaries. The introduction of the Guardianship (Missing Persons) Act 2017 (“G(MP)A 2017”) has provided a further framework to enable a guardian to manage the property and financial affairs of a missing person.

Nevertheless, the statutory framework and the common law remains uncharted territory to many, and the guidance from practitioner texts and case law is understandably limited. However, when a person goes missing or cannot be traced, there will come a time when their estate and the estates of which they are beneficiaries must be managed and/or administered.

  1. This Book

In the following chapters, this book will consider the implications of missing or untraceable people and the resolution of those implications in the context of estates, probate, and inheritance.

There are two types of cases addressed in this book. The first regards the estate of the missing person. This first type of case has readily obvious difficulties. There will usually be a house, bank accounts, and other assets in their name, and something needs to be done to manage or administer those assets. The second type of case regards the estates of others in which the missing person has an interest. The second type of cases usually, but not always, involves personal representatives who are unsure how to deal with the interest of a missing beneficiary and who, if anyone, should take it in their place.

Readers should note that not every chapter will apply to both types of cases. Whilst some are cross-applicable, other chapters specifically regard one type of case.

  1. Definitions

As there is duplication of many terms, and some have specialist definitions, in addition to those terms defined above, this book adopts the following defined terms:

  • “AEA 1925”: Administration of Estates Act 1925;
  • “Chancery Guide”: Business and Property Courts of England and Wales Chancery Guide 2022 (Fifth Update, September 2025);
  • “CPA 2004”: Civil Partnership Act 2004;
  • “CPFO 2008”: Civil Proceedings Fees Order 2008 (SI 2008/1053);
  • “CPR”: Civil Procedure Rules 1998 (SI 1998/3132);
  • “Deceased”: the person, not being the missing person, in respect of whose estate is the subject of the application, claim or administration;
  • “FPFO 2008”: Family Proceedings Fees Order 2008 (SI 2008/1054);
  • “FPR”: Family Procedure Rules 2010 (SI 2010/2955);
  • “Missing person”: a person who is missing or cannot be traced – this term, as defined here, does not mean missing person within the meaning of s.1 of the G(MP)A 2017 or s.20 of the PDA 2013;
  • “MCA 2015”: Mental Capacity Act 2005;
  • “N-CPR 1987”: Non-Contentious Probate Rules 1987/2004;
  • “Personal representatives”: unless otherwise stated this has the following meaning as set out at s.55(xi) of the AEA 1925:

“‘Personal representative’ means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the Court, and ‘executor’ includes a person deemed to be appointed executor as respects settled land”;

  • “SCA 1981”: Senior Courts Act 1981;
  • “TA 1925”: Trustees Act 1925;
  • “Type 1 Case”: a case regarding the missing person’s own estate; and
  • “Type 2 Case”: a case regarding the estate of another in which the missing person has an interest as a beneficiary, creditor, personal representative or generally.

This book also refers from time to time to the following practitioner texts:

  • Lewin on Trusts (1st supp, 20th edn, Sweet & Maxwell 2023) (“Lewin”); and
  • Williams, Mortimer & Sunnucks – Executors, Administrators and Probate (22nd edn, Sweet & Maxwell 2023) (“Williams, Mortimer & Sunnucks”).

References to numbers when referring to the above works, or to any cases referred to in this book, are to the paragraph numbers of the works and cases referred to. All references to legislation are to the amended versions as of 1 October 2025, unless otherwise stated.

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[1]    Richard John Bingham, 7th Earl of Lucan

[2]    ‘Key Information’ (Missing People) <https://www.missingpeople.org.uk/for-professionals/policy-and-research/information-and-research/key-information> accessed 14 October 2025

[3]    The detail of those cases and historical position is beyond the scope of this work. Should the reader be interested to read further in respect of the historical position then please see: Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, HL; Wills v Palmer (1904) 53 WR 169; Re Bowden (1904) 21 TLR 13; Lal Chand Marwari v Mahant Ramrup Gir (1925) 42 TLR 159, PC; Chard v Chard [1956] P 259, [1955] 3 All ER 721; Bullock v Bullock [1960] 2 All ER 307, [1960] 1 WLR 975, DC; Bayes-Walker v Bayes-Walker [2010] EWHC 3142 (Ch), [2011] WTLR 1143