DPRR/12-13/76
Presumption of Death Bill [HC]
Memorandum by the Ministry of Justice
for the House of Lords
Delegated Powers and Regulatory Reform Committee
Introduction
This memorandum describes the purpose and content of the Presumption of Death Bill
(“the Bill”). It outlines the general content of the Bill; identifies every provision for
delegated legislation in the Bill with appropriate background information; explains the
purpose of the delegated power proposed; describes why the matter is to be dealt with
in delegated legislation; and explains the nature and justification for any parliamentary
procedures, which apply.
Background to the Bill
Under the law of England and Wales the disappearance of a person does not of itself
affect the ownership or control of his or her property and affairs. In such circumstances
it may be difficult or impossible for those left behind to obtain a death certificate if they
believe the missing person must be dead. Without a death certificate, the missing
person will generally be assumed to be alive. Those left behind may, as a result, have
to use various procedures to deal with different aspects of the missing person’s
property and affairs. Different procedures, for example, must be followed to end a
marriage or civil partnership on the one hand and to obtain a grant of probate to
administer the missing person’s estate on the other. The procedures that may be used
are briefly summarised at Annex A.
This contrasts with the position in Scotland and Northern Ireland, where legislation
(respectively the Presumption of Death (Scotland) Act 1977 and the Presumption of
Death Act (Northern Ireland) 2009 provides for a procedure for the making of a
declaration that a missing person person is to be presumed to be dead, which is
effective generally. The Presumption of Death Bill will introduce into the law of
England and Wales a new procedure, on the same model as in Scotland and Northern
Ireland, enabling the High Court to make a declaration that a missing person is to be
presumed to be dead. The court will make the declaration following an application if it
is satisfied that the missing person has died or has not been known to be alive for a
period of at least seven years. The court will send a copy of the declaration to the
Registrar General for England and Wales when it can no longer be the subject of an
appeal, at which time the declaration will be conclusive as to the presumed death and
effective for all purposes and against all persons. The missing person will then be
assumed to be dead. The consequences will include:
 ownership of the missing person’s property will then change in the same way as
if he or she had died naturally;
 his or her marriage or civil partnership will end; and
 any property held by reference to the missing person’s life will pass to the
person next entitled (for example, property held on trust for A for life and then to
B, will pass to B on the declaration of the presumed death of A under the Bill
becoming conclusive and effective).
Details of the death of the missing person will then be entered in a new Register of
Presumed Deaths, which will be linked for search purposes to the registers of death
maintained under the Births and Deaths Registration Act 1953. The new register will be
created and maintained by the Registrar General. Certified copies of entries in the
register issued by the Registrar General will be treated as evidence of the missing
person’s death without further proof. These certified copies, which are in effect
certificates of presumed death equivalent to death certificates, can be used by those
left behind to deal with the property and affairs of the missing person as if he or she
had actually died and a death certificate had been issued.
If, following the making of a declaration, facts emerge that require the declaration to be
revoked (for example, the missing person returns) or varied (for example, new
evidence emerges of the date of death) the High Court may on application make a
variation order. Once the variation order is beyond appeal the court will send it to the
Registrar General who will amend the register. Although a variation order cannot revive
a marriage or civil partnership and does not of itself affect any interest in property
acquired as a result of a declaration, it may still have consequences for the ownership
of property
When making a declaration or a variation order, the High Court can determine
questions and make orders relating to property acquired as a result of the declaration
or the variation order and can also determine the domicile of the missing person at the
time of his or her presumed death.
More detailed information about the purpose and effect of the Bill and the background
to the proposals can be found in the Explanatory Notes published with the Bill.
Delegated Powers
The Bill contains five delegated powers:
- rules of court may specify to whom notice of an application for a declaration or
variation order must be sent and how the application must be advertised.
(clause 9(1) and (2));
- the Registrar General for England and Wales with the approval of the Secretary
of State may by regulation prescribe matters relating to the register of Presumed
Deaths, except for fees, which are to be prescribed by the Secretary of State
(clause 15 and schedule,1 paragraph 7).
- the Secretary of State may by regulation amend certain time periods specified in
the Bill relating to the length of time for which a person is required not to have
known to be alive before a declaration can be made (specified as 7 years) and the
length of time after which an order related to property can be made following a
variation order (specified as 5 years) (clause 17).
-
The Secretary of State may by regulation make consequential, supplementary,
incidental, transitional or saving provision in relation to any provision of the Bill
(clause 18).
-
The Secretary of State may bring some of the provisions of the Bill into force by
commencement order (clause 5(3)).
Clause 9(1) and (2) – notice and advertisement of an application
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Background
The Bill provides that applications may be made to the High Court for declarations of
presumed death and variation orders. If the High Court is satisfied that the grounds for
the making of the declaration or variation order (as the case may be) are made out it
will make the declaration or order. The effect of the declaration will be that the person
who is the subject of the application will be deemed for all legal purposes to be
presumed dead. Declarations and variation orders can therefore affect the missing
person, his or her spouse or civil partner, members of his or her wider family as well as
creditors and asset holders, including life insurance companies. Some or all of these
persons and possibly others may therefore have an interest in the making of a
declaration or variation order in relation to the missing person. In making a declaration
or a variation order the High Court will want to be sure as far as is possible that all
relevant evidence has been uncovered and that all interested parties have had an
opportunity to make representations.
Proceedings in the High Court under the Bill are likely to be dealt with by the Chancery
Division or the Family Division. The allocation will be decided in due course in
consultation with the judiciary. Business in the Chancery Division is generally governed
by the Civil Procedure Rules and in the Family Division by the Family Procedure Rules.
These rules are made by the Civil Procedure Rule Committee and the Family
Procedure Rule Committee respectively, in either case with the approval of the Lord
Chancellor.
The delegated power
Clause 9(1) provides that a person making an application for a declaration or a
variation order must send notice of the application and any other information specified
by rules of court to the persons specified by rules of court.
Clause 9(2) provides that an application for a declaration or variation order must be
advertised in accordance with rules of court.
The details of the rules regarding notices and advertisements have yet to be
formulated but an indication of the possible content may be gauged from the rule 4 of
the Rules of the Court of Judicature (Northern Ireland) (Amendment No. 4) 2009, which
was made in connection with the equivalent provision in the Presumption of Death Act
(Northern Ireland) 2009. It is expected that similar provision will be made in England
and Wales save that notice of the application will not as a matter of course be served in
the Registrar General or the Attorney General. Rule 4 is reproduced at Annex B.
The reason for the power
Proper provision for notice and advertisement will help make sure the process of
making a declaration of presumed death or a variation order is robust and transparent.
These matters are considered appropriate for rules of court, since they are concerned
with matters of practice and procedure; but while the powers to make rules of court are
broad and flexible, it is considered prudent to ensure explicitly that they cover these
aspects.
Procedure
Rules of court are made by the relevant Rule Committee, with approval of the Lord
Chancellor, in a statutory instrument subject to negative resolution procedure. We see
no reason to depart from that procedure for that part of the rules which will cover the
matters specified in this clause.
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Clause 15 and schedule 1 paragraph 7 - Register of Presumed Deaths
Background
Clause 15 provides that the Registrar General for England and Wales must maintain a
Register of Resumed Deaths in the General Register Office and gives effect to
schedule 1 to the Bill, which makes further provision about the register. The register is
to be maintained in such form as the Registrar General considers appropriate.
Paragraph 7 of schedule 1 provides that “prescribed” means prescribed by regulations
made by the Registrar General for England and Wales with the approval of the
Secretary of State (except in relation to fees, when it means prescribed by regulations
made by the Secretary of State).
The delegated powers
The following provisions of Schedule 1 enable the Registrar General to prescribe the
following matters:

Paragraph 1(1)(b) – information to be provided by the court to the Registrar
General when sending a copy of a declaration of presumed death to her.

Paragraph 1(2)(a) – information to be included in the entry of the Register of
Presumed Deaths in addition to the name of the missing person.

Paragraph 2(1)(b) – information to be provided by the court to the Registrar
General when sending a copy of a variation order to her.
In addition, paragraph 6(1) enables the Secretary of State to prescribe the fee payable
for a certified copy of an entry in the Register of Presumed Deaths.
Why the power is necessary
Paragraphs 1(1)(b), 1(2)(a) and 2(1)(b) are necessary so that the Registrar General
can obtain the information she requires from the court to complete the entries in the
Register of Presumed Deaths. Prescribing the information to be provided will also
make for certainty on the part of the court as to the information it needs to collate..
Paragraph 1 of Schedule 1 to the Presumption of Death Act (Northern Ireland) 2009
makes similar provision.
Paragraph 6(1) is necessary to ensure that fees can be charged for the provision of
certified copies of entries in the register.
Procedure
Regulations under clause 15 and schedule 1 to the Bill (other than in relation to fees)
may be made by the Registrar General with the approval of the Secretary of State by
statutory instrument without any further parliamentary procedure. Regulations
prescribing fees, however, are to be made by the Secretary of State by statutory
instrument subject to negative resolution procedure. This is in line with the provisions
governing civil registration information and registration generally (see Births and
Deaths Registration Act 1953, s 39; Registration Services Act 1953, s 20, Public
Expenditure and Receipts Act 1968, s 5 and Adoption and Children Act 2002, s 78).
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Clause 17 – Time periods
Background
Clause 1 of the Bill applies where a person who is missing is thought to have died or
has not been known to be alive for a period of at least seven years (clause 1(1)). If, an
application having been made and the court having jurisdiction, the court is satisfied
that the missing person has died or has not been known to be alive for that period, it
must make a declaration of presumed death in accordance with clause 2 (clause 2(1)).
If the declaration is made on the ground that the missing person has not been known to
be alive, the missing person must be presumed to have dies at the end of the period of
seven years beginning with the day after the day on which he or she was last known
to be alive (clause 2(4)).
When the court makes a variation order under clause 5, it must make such further
order (if any) as it considers reasonable in relation to any interest in property acquired
as a result of the declaration varied or revoked by the variation order (clause 7(2)).
However, such a further order can only be made if the application for the variation
order was made within the period of five years beginning with the day on which the
declaration that is to be varied or revoked was made, unless there are exceptional
circumstances (clause 7(3)).
The periods of seven and five years in clauses 1(1)(b), 2(1), 2(4) and 7(3) that are
capable of being varied under clause 17 are modelled on similar provisions in the
Presumption of Death (Scotland) Act 1977 1 and the Presumption of Death Act
(Northern Ireland) 2009.2
Independently of the Bill a period of seven years absence is well established as
providing the point at which in court proceedings a missing person will be presumed to
be dead unless there is evidence to the contrary rather than vice versa. This
presumption is applied at common law and is applied in statute in the procedure to
obtain a Decree of Presumption of Death and Dissolution of Marriage under section 19
of the Matrimonial Causes Act 1973.
Section 13 of the Presumption of Death Act (Northern Ireland) 2009 contains a
provision similar to clause 17.
The delegated powers
Clause 17 provides that the Secretary of State may by regulation amend the Bill by
changing the time periods specified in clauses 1(1)(b), 2(1), 2(4) and 7(3) (which is to
say, the seven and five year periods explained above).
Why the power is necessary
There is no immediate intention to exercise the power in clause 17. However, there
may come a time when it is considered that seven years is no longer an appropriate
yardstick and that missing people should be deemed to be presumed dead only after a
different period, be that shorter or longer: similarly in relation to the five year period.
These decisions can only be made in the light of experience. The existence of the
power in clause 17 will enable such changes as are thought to be appropriate to be
made without primary legislation.
1
2
Sections 1(1), 2(1) and 6(4).
Sections 1(1), 2(1) and 6(5).
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Procedure
Regulations under clause 17 are to be made by the Secretary of State by statutory
instrument and are subject to an affirmative resolution procedure. They may not be
made unless a draft of the instrument has been laid before and approved by each
House of Parliament. As the regulations will amend statute and will be capable of
significantly affecting the status and property rights of missing persons, it is appropriate
that express Parliamentary approval of the proposed change is obtained before the
change is made.
Clause 18 - consequential, supplementary, incidental, transitional or saving
provision
Background
The Bill will create a new procedure to supplant (in part) existing procedures that are
used to resolve the property and affairs of a missing person (see Annex A for a brief
summary of the existing procedures).
The delegated powers
Under clause 18 the Secretary of State may by regulation make consequential,
supplementary, incidental, transitional or saving provision in relation to any provision of
the Bill.
Why the power is necessary
It will enable the Secretary of State to make such provision of these kinds as is
necessary to bring the Bill smoothly into force. Given the newness of the procedure for
which the Bill makes provision, a standard flexible power of this sort is prudent.
Procedure
Regulations under clause 18 will be made by statutory instrument. The instrument will
be subject to annulment by resolution of either House of Parliament unless it amends
or repeals an Act, including an Act or Measure of the National Assembly for Wales, in
which case it may not be made unless a draft has been laid before and approved by a
resolution of each House of Parliament. This affirmative resolution procedure is
appropriate for instruments that will amend statute and will be capable of significantly
affecting the status and property rights of missing persons. In other cases, the negative
resolution procedure is appropriate for consequential, supplementary, incidental,
transitional or saving provisions.
Clause 21 - Commencement
Background
Clause 21 specifies when the Bill will come into force. Clause 21(1) provides that
certain provisions will come into force on the day on which this Act is passed. These
are:
(a) section 9 (giving notice of the application) so far as it confers a power to make rules,
(b) section 15(4) and Schedule 1 (Register of Presumed Deaths) so far as they confer
a power to make regulations,
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(c) sections 17 to 23 (inclusive) which deal with powers to make regulations;
consequential and supplementary etc. provision; interpretation; commencement; extent
and the short title.
The delegated powers
The remaining provisions of the Bill are to come into force on such day as the
Secretary of State may by order appoint (clause 21(2)).
An order under clause 21(2) may appoint different days for different purposes, and
include transitional, transitory or saving provision.
Why the power is necessary
Clause 21(2) is a standard commencement provision. It is necessary because the Bill
cannot properly be brought into force until the necessary rules of court and regulations
have been made to enable the court and registration procedures to function properly.
Procedure
Any commencement order under clause 21 must be made by statutory instrument but
is not otherwise subject to any Parliamentary procedure. This is usual for
commencement orders, and there is no aspect of the power in the context of this Bill
which calls for different treatment.
Territorial Extent
The Bill extends to England and Wales only.
Ministry of Justice
October 2012
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Annex A
Specific Procedures
Where a person goes missing and there is sufficient evidence that he or she is
probably dead then there are a number of specific procedures under which he or she
may be presumed dead. In most of these cases the presumption of death is limited to
the purposes of the specific procedure in question.
Coroner’s Inquest
Where a person goes missing in suspicious circumstances the missing person’s family
can ask for a Coroner’s inquest to be held under section 15 of the Coroners Act 1988.
Section 15 provides that a coroner may report to the Secretary of State where they
have reason to believe that a death has occurred in or near their district in such
circumstances that an inquest ought to be held; and that the body has been destroyed
by fire or cannot be recovered. On receipt of such a report the Secretary of State, if he
considers it desirable, may issue a direction to the coroner to hold an inquest. A death
certificate may be issued as a result of the inquest.
Decree of Presumption of Death and Dissolution of Marriage and Presumption of
Death Order
Under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil
Partnership Act 2004 where a married person or civil partner goes missing and the
surviving spouse or civil partner wishes to dissolve the marriage or civil partnership, he
or she can apply for a ‘decree of presumed death and dissolution of marriage’ in the
case of a marriage or in the case of a civil partnership a ‘presumption of death order’.
A decree or presumption of death can be obtained at any time after the spouse or civil
partner goes missing and will be granted if the court is satisfied that there are
reasonable grounds that the missing person is probably dead. The decree or
presumption of death order can only be used to dissolve the marriage or civil
partnership. They cannot be used to obtain a death certificate. Ancillary relief will only
be available if the missing person returns.
The decree or presumption of death order will allow the spouse or civil partner left
behind to marry or enter a civil partnership.
Leave to Swear Death
Where a person goes missing and a member of the missing person’s family wishes to
obtain a grant of probate in order to administer the estate of the missing person then
he or she can apply for a ‘leave to swear death order’. A leave to swear death order is
made pursuant to Rule 53 of the Non-Contentious Probate Rules 1987. It is an order
made solely for the purpose of allowing probate to be granted to the estate of a missing
person. It is not, and will not be accepted as, conclusive proof of death. An application
is made ex parte on affidavit, usually by the applicant for the grant of probate or letters
of administration, to a District Judge of the Principal Registry of the Family Division or a
District Probate Registrar. Appeals from the Probate registry are made to the Chancery
Division of the High Court.
Probate is the process by which the estate of a deceased person is administered: that
is gathered in, the debts paid and the net estate distributed in accordance with the will
or the intestacy rules. The administration is conducted by executors named in the will
under a grant of probate or administrators appointed by the court under letters of
administration in the case of intestacy.
A leave to swear death order enables an application for probate or letters of
administration to be made. The estate of the missing person can then be administered.
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Social Security benefits
Section 8 of the Social Security Act 1998 governs the Secretary of State's power to
make decisions in relation to a person's entitlement to a range of benefits, including
decisions that a person's spouse may be presumed to have died. Specific provision is
also made by section 3 of the Social Security Administration Act 1992 which deals with
late claims for bereavement benefit where it is difficult to establish death.
Certificate of Presumed Death
Where a person has gone missing in identifiable circumstances it may be possible to
obtain a ‘certificate of presumed death’. These can be made under a variety of Acts
and regulations. They can apply where a member of the armed forces has gone
missing in action; if a merchant seaman goes down with his ship; where someone
cannot be found after a tragedy on an offshore installation; or where someone working
in a particular Government department cannot be found after an incident while he or
she was on duty, for example, an embassy worker who goes missing in a bomb blast.
These certificates are not usually issued by the courts but by the authority responsible
for the missing person. They are issued once the authority is satisfied that the person
probably died as a result of the incident. They can be used, at the discretion of the
court, for probate purposes, but they cannot be used to obtain death certificates.
Consular Death Registration
The FCO has the power to issue consular death registration documents. This type of
document does not constitute a UK death certificate and does not replace a locally
issued death certificate. Consular death registration is not a legal requirement but it
means: an entry will be made in the death register by the British Consulate in the
country concerned; an applicant will be able to obtain a British style certificate; and a
record of the death will be held by the General Register Office in the UK.
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Annex B
Extract from Rules of the Court of Judicature (Northern Ireland)
(Amendment No. 4) 2009
Notice of application
4.—(1) The applicant shall give notice of an application for a declaration of presumed
death by serving a copy of the application and of the supporting affidavit, unless the Court
otherwise directs, on—
(a) the Registrar General;
(b) where the missing person is married, or is party to a civil partnership and the
applicant is neither the spouse nor the civil partner of the missing person, the
spouse or, as the case may be, the civil partner of the missing person;
(c) any other person, including any insurance company, who, so far as is known to the
applicant, has any interest in the application; and
(d) any other person, as the Court may direct.
(2) Notice under paragraph (1)(a)-(c) shall be served by the applicant upon issue of the
application, or as soon thereafter as is reasonably practicable.
(3) Notice under paragraph (1)(d) shall be served by the applicant not more than 7 days
after such direction is given.
(4) The applicant shall cause notice of an application for a declaration of presumed death
to be published, in Form No. 76, at least 21 days before the hearing, in at least one edition
of one newspaper circulating in the vicinity of the last known residence of the missing
person, unless the Court otherwise directs.
(5) A copy of the page of the newspaper bearing the advertisement of the notice of the
application required by paragraph (4), and the date on which it was published, shall be lodged with the
Court at least 2 clear days before the hearing of the application.
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