PRESUMPTION OF DEATH ORDER
When people go missing most are found and safely reunited with their families but a small minority remain on the Garda National Missing Persons List. The following information explains the legal situation in Ireland regarding the estate and possessions of a missing person.
If someone is thought to be dead but there is no body (for example, because a person was lost at sea), all of their assets and property are usually frozen. Two exceptions to this are where the property is jointly owned or where someone has Power of Attorney to deal with their property or money in their absence.
Dealing with the missing person's property
Before 1 November 2019, the general position was that a person needed to be missing for at least 7 years before a person could be treated as dead in the eyes of the law. This meant that their next of kin were denied any bereavement-related entitlements under any pension, life insurance or social welfare scheme.
Since 1 November 2019, when the Civil Law (Presumption of Death) Act 2019, commenced, a court can make a "presumption of death order" if it is satisfied that the circumstances suggest that the missing person's death is either virtually certain, or highly probable. If such an order is made and not successfully appealed, it has the same status as a death certificate.
This allows beneficiaries to seek death-related payments which would previously have been denied to them for a number of years. It also ends the marriage or civil partnership of the missing person.
A wide category of people, including all family members, dependants and cohabitants can apply for a presumption of death order. The application will normally be made in the Circuit Court but in certain cases will need to be made in the High Court. Any person applying for a presumption of death order must notify all the other persons potentially affected by any order.
In addition, if an order is made, the applicant will normally be obliged to take out insurance against any losses arising if the person returns. However, the cost of this insurance will be charged to the missing person's estate.
Where the applicant can produce evidence to satisfy the court that the missing person is virtually certain to have died, then there is no minimum waiting period before an application can be made. However, where the applicant can only produce evidence to satisfy the court that it is highly probable that the missing person is dead, then they must wait one year.
A court must take into account all the circumstances surrounding the disappearance and absence of the missing person in deciding whether to make an order, including:
Abandonment of valuable property
Searches made after the disappearance
Any possible motive for disappearing
Any possibility of foul play
Life insurance recently taken out by the missing person
Any prior history of fraud on the part of the missing person
There is also scope for a presumption of death order to be varied or revoked if there is new evidence suggesting the person is alive