The disappearance of a loved one or endearing friend is undoubtedly one of the most tragic and painful events that one can experience.
When it appears very unlikely that a missing person will be found, it may become necessary to obtain a legal declaration of death for the person in order to distribute the estate of the person.
The Survivorship and Presumption of Death Act (the “Act”) is a British Columbia statute that governs the application for a legal declaration of death of a missing person. Under the Act, an “interested person” may make an application pursuant to the Act. An interested person can be any person who is or would be affected by an order declaring that an individual is dead. For example, an interested person can be the missing person’s next of kin, a beneficiary of the person’s life insurance, or even a creditor of the missing person.
If the missing person has not been seen or heard of by the applicant, or to the knowledge of the applicant by any other person, and the applicant has no reason to believe that the person is alive, and there is some evidence from which it can be reasonably inferred that the person is dead, then the Court may make an order declaring that the missing person is presumed to be dead for all purposes, or for the purposes only as are specified in the order.
Please note that the Act does not stipulate that a period of time must elapse before an interested party is eligible for an order under the Act. That said, the length of time a person has been missing is a factor that the Court will consider in determining whether the circumstances of a case satisfy the criteria for a legal declaration of death.
An application for a legal declaration of death is normally supported by affidavit evidence. The affidavits filed as part of the application must include as much evidence as possible that indicates the missing person is dead. The affidavit evidence may include affidavit evidence from police, if available, to corroborate the applicant’s own affidavit evidence that the missing person is, in fact, dead.
It is advisable that an interested person seek legal advice before commencing an application to determine whether there is sufficient evidence, from a legal point of view, to support a legal declaration of death.