*This post was inspired by a similar post on the Declarations of Death Act, 2002 out of Ontario.
The search for the OceanGate submarine and its five passengers captivated the world by storm this past June. The U.S. Coast Guard ultimately concluded that the “five crew members onboard the submersible were probably killed instantly in a ‘catastrophic implosion’”. Possible human remains have been recovered from the wreckage, but confirmation through medical analysis still needs to be done.
The story should end there – but, it is not so simple in the eyes of the law.
Declarations of Death
To be declared dead in British Columbia is a formal and highly procedural process.
It requires the confirmation of human remains by a medical practitioner or coroner, who then completes and signs a Medical Certification of Death. This Certification is forwarded to a funeral director, who will obtain more information about the deceased from an informant. An informant can be anyone who was aware of the facts leading up to the death or of the death itself. The funeral director will then register the death when they have the Certification and all of the necessary information about the deceased, and will issue a death certificate and disposition permit. The death is then formally registered with the BC Vital Statistics Agency.
But, what happens when there are no human remains to be found, or it is not exactly clear that somebody has really died?
The common law in British Columbia will presume a person to be dead if they are not heard of or from for seven years. However, an “interested person” can bring an application in court under the Presumption of Death Act, 1996 (“the Act”) for an individual to be declared legally dead without requiring any minimum amount of time to elapse. An “interested person” can be:
- Any person who is or would be affected by an order made under the Act,
- The next of kin of the person presumed to be dead, or
- A person who holds any property of the person presumed to be dead.
The court will then make an order under the Act declaring the person is presumed to be dead for all purposes if:
- The person has been absent and not heard of or from by the applicant or any other person since the day the applicant states,
- The applicant has no reason to believe that the person is living, and
- Reasonable grounds exist for believing the person is dead.
Once such an order is made, the usual steps can be taken to begin administering that person’s estate (either probating a will, if one exists; or seeking a grant of administration if there is no will).
What Constitutes ‘Reasonable Grounds’ for Believing a Person is Dead?
It may be fair to assume that a submarine that imploded deep underwater within a matter of milliseconds would have killed everybody on board. But, making assumptions around circumstances of death isn’t as straightforward as it may seem. Although it isn’t stated as a requirement in the Act itself, the courts have often made declarations of death based on a “balance of probabilities”.
In Re Burgess, 2004 BCSC 62, the missing person, Rick Burgess, had not been heard from for 22 months. He was described as a family man and worked as an actor and stuntman. He had associations with the Hells Angel Motorcycle Club and was attending a meeting on the day he disappeared. Mr. Burgess’ wife had received confidential information from the police, in which they informed her that the Hells Angels likely killed her husband. The court accepted that evidence under the principled exceptions to hearsay evidence, and surmised that the “‘dark side’ of Mr. Burgess’ life caught up with him and the only reasonable inference is that his life [had] been ended by ‘person unknown’”. The court was satisfied on a balance of probabilities that Mr. Burgess had died by misadventure.
However, in Re Cyr, 2006 BCSC 1523, the court was unable to find on a balance of probabilities that the missing person was dead because there was some basis to conclude that he had actually chosen to disappear. Mr. Cyr was associated with the Hells Angels and had informed his girlfriend that he was attending a meeting with one of the people that was responsible for robbing his storage unit. The court found this evidence to be consistent with two possible conclusions: Mr. Cyr’s meeting had either gone poorly and he was murdered, or Mr. Cyr was aware of some risk and decided to disappear. As such, the court found that on balance, the circumstances around Mr. Cyr’s death and the available evidence were not enough to push the scales in favour of presumed death.
The disappearance of a loved one is an incredibly painful experience that can often become quite complicated. Depending on the circumstances, it may be necessary to obtain a legal declaration of death in order to begin the processes of dealing with and distributing their estate.
If you have any questions or are looking for more information regarding applications to support a legal declaration of death, please contact Zachary Murphy-Rogers or any of the experienced members of our Estates & Trusts group.