Lucan: presumed dead for all (legal) purposes

Posted on 15 February 2016 by Karl Sutaria

Lucan: presumed dead for all (legal) purposes

A declaration of presumed death has been made by the High Court in relation to the infamous Lord Lucan, following an application by his son, George Bingham, under the Presumption of Death Act 2013 (the 'Act'), which came into effect in October 2014.

Lord Lucan has been previously declared dead by the High Court, in August 1999. That declaration, however, was made solely in the context of probate matters. The new declaration under the Act is, pursuant to section 3(2), 'effective against all persons and for all purposes'. This all-purpose nature gives declarations under the Act the same effect as a death certificate, permitting Mr Bingham, in this case, to assume the family title as the eighth earl of Lucan.

Declarations made under the Act are available on the application of family members, and will be granted if the evidence shows that it is likely a missing person has died or has not been known to be alive for a seven year period (section 2(1)).

Aside from assisting with the somewhat unusual situation facing Mr Bingham, potential uses of a declaration include transferring interests in the missing person's property or terminating a marriage or civil partnership to which the missing person was a party. Previously, the various aspects of a missing person's affairs had to be dealt with through a disparate array of procedures, which were only applicable under certain sets of circumstances and could only be used for limited purposes. Where the circumstances did not warrant an application through these procedures and there was no direct evidence of death (meaning no death certificate could be issued), the courts would presume death, in most cases only after an invariably stressful and difficult period of seven years had passed without any suggestion of life.

The framework provided by the Act corrects that situation by making it possible to apply for a declaration as soon as there is some evidence that the person is likely to have died. An example might be where the person has disappeared in circumstances that present an immediate threat to life, such as following a fire.

The overall effect of the Act, therefore, is to consolidate and expedite the process for giving those affected by a person's disappearance a practical tool for managing the missing person's affairs, which is a welcome change from the previous state of the law, and finally brings it in line with legislation in Northern Ireland and Scotland.