High Court provides presumption of death update

The England and Wales High Court (EWHC) has confirmed that a deceased individual’s named executor has legal standing to seek a declaration of presumption of death in England and Wales, even when a nominating will has not been proved.

Under the Presumption of Death Act 2013 it was already possible to apply for a court declaration stating a missing person domiciled in England and Wales was to be presumed dead.

In such cases, the court had to be satisfied that the missing individual had either died or was not known to have been alive for a period of at least seven years. It also had to be able to specify a date and time of death.

However, under section 1(5) of the Act, only a spouse, civil partner, parent, child, sibling, or a person with “sufficient interest” could seek such a declaration.

While this final category included those who obtained a grant of letters of administration for an intestate estate, it remained unclear if it included someone who had been nominated by the missing person as their executor.

The situation has been clarified by the case of Caroline Fisher, who was reported missing after “entering the sea” near Porthscatho in Cornwall in January 2022.

The 62-year-old former journalist from Cheltenham had made a will in September 2020 nominating her friend Kerry Tolley as executor. In due course, Ms Tolley had applied for a presumption of death (supported by Ms Fisher’s two cousins, her only living close relatives) to allow the administration of the estate.

Satisfied Ms Fisher was deceased, his Honour Judge Paul Matthews reminded the court that an unproved will “may not turn out to entitle the claimant to administer the estate”.

However, referring to the rules of intestacy under the Administration of Estates Act 1925, Judge Matthews added: “It certainly would not make any sense to hold that a putative executor could not apply, though a putative administrator could do so and obtain a presumption declaration, so that then the putative executor, on the back of that, could apply for and obtain probate.”

The Judge stressed that a successful probate application would still be required, “in which the testamentary paper may be challenged if appropriate [to ensure] there should be no risk to the estate in allowing the application to be made”.