Analysis
Caroline Fisher was an only child and her parents were deceased. In September 2020 she made a will appointing the claimant, her friend, as her executor. In January 2022, she drove into the sea and had not been seen since. The claimant issued a CPR Part 8 claim under the Presumption of Death Act 2013 for a declaration of presumption of death before the will had been proved. Section 1(5) of the 2013 Act provides that the court must refuse to hear the application if:
- (a) it is made by someone other than a missing person’s spouse, civil partner, parent, child or sibling; and
- (b) the court considers that the applicant does not have a sufficient interest in the determination of the application.
The claim was successful, and the court gave a short judgment dealing with the question as to whether the claimant had ‘sufficient interest’ and therefore standing to bring the claim.
Held:
- (1) A person who intends to prove a testamentary paper does have sufficient standing to apply for a declaration of presumption of death, even though the paper has not yet been proved.
- (2) The question was whether the claimant had a ‘sufficient interest in determination of the application’. The term ‘sufficient interest’ was not defined, and the court was not aware of any direct authority on the issue, but the test was similar to s31 of the Senior Courts Act 1981 in respect of applications for judicial review. There were a number of relevant aspects to the question of sufficient interest under the 2013 Act, which include:
- (i) the emotional interest of family and close friends;
- (ii) the financial interest of people in the continued lives of others, such as minors and dependants living with the missing person;
- (iii) the financial interest of people in the death of others, such as heirs, beneficiaries and insurance policies; and
- (iv) the public interest in relation to aspects of government, such as civil registration, taxation and social security.
- (3) The key point in the context of a putative executor was that, where they wish to prove the will but cannot give an exact date of death, they must either obtain a declaration or seek leave to swear to or give evidence as to the death. The latter was done in the past where there was no statutory presumption jurisdiction, and leave was usually given on the basis that seven years had elapsed since the disappearance, although the court was prepared to grant leave sooner in an appropriate case. Since the 2013 Act came into force, the standard practitioner texts (Tristram and Coote’s Probate Practice (32nd ed) and Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed)) had treated statutory jurisdiction as the primary one to employ when no body or exact date of death was available. There was a distinction between the two jurisdictions in that granting leave to swear to the death did not at that stage involve the court in reaching a conclusion as to death having taken place, whereas a declaration of presumption of death follows a decision of the court on the evidence.
- (4) An executor who obtains probate owes fiduciary duties to the creditors and beneficiaries of the estate, but a declaration as to the presumption of death does not give any rights in relation to the missing person’s estate as there must still be a successful probate application. As such, there should be no risk to the estate in allowing the application to be made.
- (5) The interest of a person in succeeding to the property of another on the death of that other was a well-known interest, prized by ordinary people, and protected by law. It was a right protected by ECHR Protocol 1 Art 1 and, at least in relation to children and parents, also by Art 8.
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