In the last decade, the world experienced its share of mass tragedies which were either caused by terrorist attacks or by unforeseen natural events. I would expect that everyone can remember where they were when the twin towers of the WorldTrade Center collapsed September 11, 2001; or the feeling of incredulity when we heard about the disappearance of Malaysia Airlines flight MH370; or more recently, the earthquake in Nepal.
How do you prove death when there is no body?
When a loved one disappears, the person is not automatically presumed dead. A family member or an individual affected by an order which declares a person is dead (Declaration of Death) must apply to the court to have the missing person declared dead. A court will only make the declaration under two circumstances: the person has been missing for seven years, or they disappeared in circumstances of peril.
The Declarations of Death Act, 2002 provides that an individual may be declared dead by the court if he or she is missing for at least seven years and has not been heard from during those seven years by family members or any other interested party. Before making the declaration of death, the court has to receive evidence that family members or interested parties made reasonable inquiries to find the missing person during the seven-year period; that the family members or interested parties have no reason to believe the missing person is alive; and there is sufficient evidence to find that the missing person is dead. The onus is on the family members or the interested parties to prove that efforts have been made to find the missing person.
For several reasons, the court puts an emphasis on the level of search that has been done during the seven-year period before the presumption of death is triggered. We can all recall missing person stories where family members thought a loved one was missing, only to discover several decades later that their loved one was living under a different name in a different city. In those circumstances, the Ontario Superior Court retains the jurisdiction under the Act to revoke or amend any declaration of death it makes.
Before making a declaration of death, the court is attentive to a number of colliding interests. First, the court has to consider the interests of the missing person who has disappeared. There is a possibility a person disappeared of his or her own volition, and has chosen not to be found by family members. Second, the court has to consider the right of third parties against the missing person's rights. Lastly, the court has to consider the general interest of society, which may require that property does not remain abandoned without someone representing it and without an owner. The courts are very reticence to make a declaration of death as the consequences of declaring a person dead are very severe. A person declared dead loses all rights to their own property. Therefore, even though a person has been missing for at least seven years, the court will rigorously examine the "reasonable inquiries" that were made to find the missing person to prevent any misuse under the Act.
Circumstances of peril
After the events of 9/11 and the numerous deaths and bodies that were never found, the Ontario Declarations of Death Act was amended in 2002 to add another presumption of death in circumstances where an individual has been missing for less than the required sever-year period. Subsection 2(4) of the Act provides that a person may be declared dead if the court is satisfied that:
- the individual has disappeared in circumstances of peril;
- the family member or interested party has not heard of or from the missing person since the disappearance;
- the family member or interested party's knowledge, after making reasonable inquiries, no other person has heard of or from the missing person since the disappearance
- the family member or interested party has no reason to believe the missing person is alive; and;
- there is sufficient evidence to find that the individual is dead.
Since 2002, the courts have been tasked with applying section 2(4) of the Act to determine and give meaning to the words "circumstances of peril." The courts have concluded that a person is at peril due to certain threshold factors external to the person. While different types of external events will be identified by the courts, it seems obvious that the earthquake in Nepal, the disappearance of the Malaysia airlines flight, and 9/11, would constitute the kinds of events that would trigger section 2(4) of the Act.
How to administer an estate
If you are unable to prove a seven-year absence, while a person remains missing, there is jurisdiction under the Absentees Act to obtain a court order to declare the missing person to be an absentee.An absentee is defined to be a person who, having had his or her usual place of residence or domicile in Ontario has disappeared; whose whereabouts is unknown; and there is no knowledge as to whether he or she is alive or dead. Once a missing person has been declared an absentee, then the court may make an order for the custody, care and management of the property of the absentee. A committee may be appointed to administer the estate of the absentee and discharge his or her obligations. This will allow the surviving family members to put that person's affairs in order and repay his or her debts until a declaration of death can be made.
If you have a missing family member, you can still obtain help to administer the missing person's estate to ensure all financial obligations are met until a declaration of death can or should be made.Talk to a Wills and estates lawyer to determine how best to navigate the courts to obtain the authority needed to take these necessary steps.
Marcia Green is an associate lawyer with the Ottawa law firm of Nelligan O'Brien Payne LLP (www.nelligan.ca) and is a member of the Wills and Estates Practice Group.
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