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Standing to seek to a declaration of presumed death - re Tolley

Posted on 5 May 2023

Before the Presumption of Death Act came into force in 2014 there was no set method for obtaining a declaration that a missing person was to be presumed dead, thereby creating a great deal of uncertainty at a difficult time for family members. However, by s1(5) of that Act, the Court must refuse to hear any application for a declaration made by anyone other than the person's spouse, civil partner, parent, child or sibling if the court considers that person does not have sufficient interest in the determination of the application. In Re Tolley [2023] EWHC 979 (Ch), the Court held that a named executor did have standing to seek such a declaration.

In order to make a declaration of presumed death, the court must be satisfied that the missing person has died, or is not known to have been alive for a period of at least seven years. The court must specify a date and time of death and this declaration is entered onto the Register of Presumed Deaths. A certified copy of the entry then serves as proof of the death, in the same way as a death certificate. Where a personal applicant applies for a grant of probate to administer an estate, they require a death certificate (a solicitor applying for a grant does not require a death certificate but must still swear the exact date of death). In this particular case, very sadly the missing person (CF) was understood to have driven down to Cornwall and entered the sea in January 2022.

The claim was made by Ms Tolley, a close friend of CF, who was also named as one of the executors in her 2020 will. CF was an only child whose parents had predeceased her and her closest living relatives were two cousins. Ms Tolley did not therefore fall into any of the categories listed in s1(5) of the Act (neither did CF's cousins) and therefore needed to show a "sufficient interest" to seek the necessary declaration.

The question arose whether a named executor, who had not proved a will, had the necessary standing as an unproved will is "simply an unproved piece of paper naming the claimant as an executor. Ultimately, it may not turn out to entitle the claimant to administer the estate."(para 12). However, on an intestacy (where there is no will), there are clear rules (under the Administration of Estates Act 1925) setting out the order of priority by which a party is entitled to apply for a grant of letters of administration.

HHJ Matthews found that a putative executor should be in no worse a position to a putative administrator. He held that a person seeking to prove a testamentary document does have standing to apply to a declaration of presumed death, even in the absence of the will being proved.

This judgment serves to provide greater clarity on the process for applying for such a declaration, which will undoubtedly be welcomed.

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