Presumption of Death Act (Northern Ireland) 2009

Declarations of presumed death

Declarations of presumed death

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• (1) Where a person who is missing—

• (a) is thought to have died; or

• (b) has not been known to be alive for a period of at least 7 years,

any person may apply to the High Court for a declaration that the person (in this Act referred to as the “missing person”) is presumed to be dead.

• (2) The High Court has jurisdiction to entertain proceedings for a declaration under subsection (1) if (and only if)—

• (a) the missing person was domiciled in Northern Ireland on the date on which he or she was last known to be alive or had been habitually resident there throughout the period of one year ending with that date;

• (b) the applicant—

• (i) is the spouse or civil partner of the missing person; and

• (ii) is domiciled in Northern Ireland on the date when the proceedings are begun or has been habitually resident in Northern Ireland throughout the period of one year ending with that date;

• (ba) the applicant and the missing person—

• (i) are of the same sex and married each other under the law of Northern Ireland, or

• (ii) registered as civil partners of each other under the law of Northern Ireland,

and it appears to the court to be in the interests of justice to assume jurisdiction in the case; or

• (c) the applicant is a close relative of the missing person where the missing person is a victim of violence (within the meaning of section 1(4) of the Northern Ireland (Location of Victims' Remains) Act 1999 (c. 7)).

• (3) Where an application under subsection (1) is made by a person other than—

• (a) the spouse or civil partner of; or

• (b) a close relative of,

the missing person to whom the application relates, the High Court must refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.

• (4) In subsections (2)(c) and (3)(b), “close relative”, in relation to a missing person, means—

• (a) the parent or child of that person; or

• (b) the sibling (whether of the full blood or the half blood) of that person.

Making of declaration of presumed death

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• (1) Where on an application for a declaration under section 1 the truth of the proposition to be declared is proved to its satisfaction, the High Court must make that declaration and—

• (a) where the Court is satisfied that the missing person has died, the Court must include in the declaration a finding as to the date and time of death and, where it is uncertain when, within any period of time, the missing person died, the Court must find that he or she died at the end of that period;

• (b) where the Court is satisfied that the missing person has not been known to be alive for a period of at least 7 years, the Court must include in the declaration a finding that the missing person died at the end of the day occurring 7 years after the date on which he or she was last known to be alive.

• (2) The High Court, on the dismissal of an application for a declaration under section 1, may not make any declaration for which an application has not been made.

• (3) No declaration which may be applied for under section 1 may be made otherwise than under section 1 by any court or tribunal.

• (4) Where, for the purpose of deciding any issue before it, a court or tribunal has to determine any incidental question relating to the death of a person, the court or tribunal may determine that question (but only for the purpose of deciding that issue), and in the determination of that question, the court or tribunal must apply the criteria set out in subsection (1).

Effect of declaration of presumed death

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Subject to sections 5 and 6 where—

• (a) no appeal is brought against a declaration under section 1 within the time allowed for appeal; or

• (b) an appeal against such a declaration is brought and the appeal is dismissed or withdrawn,

the declaration shall be conclusive of the matters contained in it and shall, without any special form of words, be effective against any person and for all purposes including the ending of a marriage or civil partnership to which the missing person is a party and the acquisition of rights to or in property belonging to any person.

Powers of the High Court

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• (1) The High Court, when making a declaration under section 1, may—

• (a) determine any question relating to the interest of any person in the property of the missing person;

• (b) make such order in relation to any rights to or in any property acquired as a result of the making of the declaration as it considers reasonable in the circumstances of the case; or

• (c) determine the domicile of the missing person at the time of his or her presumed death.

• (2) An order under subsection (1)(b) may, subject to any conditions specified therein, direct that the value of any rights to or in any property acquired as a result of the declaration shall not be recoverable by virtue of an order made under section 6(2).

Variation orders

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• (1) A declaration under section 1 may, on an application made at any time by any person, be varied or revoked by an order of the High Court.

• (2) The Court must refuse to hear an application under subsection (1) if it considers that the applicant does not have a sufficient interest in the determination of that application.

• (3) An order made under subsection (1) is referred to in this Act as a “variation order”.

• (4) A variation order may make any determination referred to in section 4(1)(a) or (c).

• (5) Notice of the making of a variation order shall be served by the Court on—

• (a) the Registrar General;

• (b) any person who applied for the declaration under section 1 to which the application under subsection (1) relates.

Effect on property rights of variation order

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• (1) Subject to the following provisions of this section, a variation order shall have no effect on rights to or in any property acquired as a result of a declaration under section 1.

• (2) Where a declaration under section 1 has been varied or revoked by a variation order, the High Court, on making the order, must make such further order, if any, in relation to any rights to or in any property acquired as a result of that declaration as it considers reasonable in all the circumstances of the case.

• (3) An order made under subsection (2) shall not affect any income accruing between the date of a declaration under section 1 and the date of the variation order.

• (4) In considering what order to make under subsection (2), the High Court must, so far as practicable in the circumstances, have regard to the following considerations, namely—

• (a) that, in the case of any property which is being or has been administered under a trust, any person who on account of the variation order would, apart from subsection (1), have been entitled to rights to or in any such property, or any person deriving right from that person, shall be entitled to have made over to him or her by the trustee in full satisfaction of those rights only—

• (i) the said rights to or in any such property or other property for the time being representing it which is still in the hands of the trustee at the date of the variation order, and

• (ii) the value, as at the date of distribution, of the said rights to or in any such property which has been distributed;

• (b) that any capital sum paid by an insurer as a result of the declaration (other than a capital sum which has been distributed by way of an annuity or other periodical payment) or any part of such sum should be repaid to the insurer if the facts in respect of which the variation order was made justify such repayment.

• (5) The High Court must not, except where it considers that there are exceptional circumstances, make an order under subsection (2) unless the application for the variation order has been made to the Court within the period of 5 years beginning with the date on which the declaration under section 1 was made.

• (6) Where any person who has acquired rights to or in any property as a result of a declaration under section 1, or any person deriving right from him or her, enters into a transaction with another person whereby that other person acquires in good faith and for value any right to or in that property or any part of it, the transaction and any title acquired under it by that other person shall not be challengeable on the ground that an order under subsection (2) has been made in relation to that property.

• (7) A trustee shall be liable to any person having entitlement by virtue of an order under subsection (2) for any loss suffered by that person on account of any breach of trust by the trustee in the administration or distribution of the whole or any part of the property, except in so far as the liability of the trustee may be restricted under any statutory provision or by any provision in any deed regulating the administration of the trust.

Insurance against claims

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• (1) Where a declaration has been made under section 1 then, unless the High Court otherwise directs, the trustee, if any, must as soon as may be effect a policy of insurance in respect of any claim which may arise by virtue of an order under section 6(2).

• (2) Any premium payable by the trustee in respect of a policy of insurance effected under subsection (1) shall be a proper charge on the estate being administered by the trustee.

• (3) Where a declaration has been made under section 1, an insurer may, before making payment of any capital sum (other than in respect of an annuity or other periodical payment) to any person as a result of that declaration, require that person to effect in his or her own name for the benefit of that insurer a policy of insurance to satisfy any claim which that insurer may establish in the event of a variation order being made.

Supplementary provisions as to declarations, etc.

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• (1) A declaration made under section 1, and any application for such a declaration, must be in the prescribed form.

• (2) Any application for a variation order must be in the prescribed form.

• (3) Rules of court must make provision—

• (a) as to the information required to be given to the High Court by—

• (i) any applicant for a declaration under section 1;

• (ii) any applicant for a variation order;

• (b) requiring—

• (i) notice of an application under section 1;

• (ii) notice of an application for a variation order;

• (iii) any information required to be given to the High Court in accordance with paragraph (a),

to be served by the applicant on the Registrar General and on such other persons as may be prescribed;

• (c) requiring—

• (i) an application for a declaration under section 1;

• (ii) an application for a variation order,

to be advertised in such circumstances and in such manner as may be prescribed;

• (d) as to the persons who are to be parties to the proceedings in relation to—

• (i) an application for a declaration under section 1;

• (ii) an application for a variation order.

• (4) No proceedings under section 1 or section 5 shall affect any final judgment or order already pronounced or made by any court or tribunal.

• (5) The High Court may direct that the whole or any part of any proceedings under this Act must be heard in private.

• (6) An application for a direction under subsection (5) must be heard in private unless the Court otherwise directs.

• (7) In this section, “prescribed” means prescribed by rules of court.

Provisions relating to the Attorney General

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• (1) Rules of court must make provision requiring—

• (a) notice of an application under section 1;

• (b) notice of an application for a variation order;

• (c) any information required to be given to the High Court in accordance with section 8(3)(a),

to be served by the applicant on the Attorney General.

• (2) On an application for a declaration under section 1 or an application for a variation order the High Court may at any stage in the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney General.

• (3) The Attorney General may—

• (a) intervene in the proceedings on any application referred to in subsection (1) in such manner as the Attorney General thinks necessary or expedient, and

• (b) argue before the Court any question in relation to the application which the Court considers it necessary to have fully argued.

Right to intervene

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• (1) Subject to subsection (2), any person may intervene in any proceedings on—

• (a) an application for a declaration under section 1; or

• (b) an application for a variation order.

• (2) A person referred to in subsection (1) who is not—

• (a) the spouse or civil partner of; or

• (b) a close relative of,

the missing person whose presumed death is the subject of the application in question may only intervene in the proceedings on that application with the leave of the High Court.

• (3) Without prejudice to the generality of subsection (1) or (2), a person intervening under this section may—

• (a) argue before the Court any question in relation to the application which the Court considers it necessary to have fully argued;

• (b) where the person is intervening in proceedings on an application for a declaration under section 1, seek the making by the Court under section 4 of any determination or order not sought by the applicant;

• (c) where the person is intervening in proceedings on an application for a variation order, seek the making by the Court of a determination under section 5(4) or an order under section 6(2).

• (4) In subsection (2)(b), “close relative”, in relation to a missing person, means—

• (a) the parent or child of that person; or

• (b) the sibling (whether of the full blood or the half blood) of that person.

Disclosure of information

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• (1) Where the High Court is of the opinion that it is necessary for the purpose of disposing of proceedings under section 1 or section 5, the Court may, of its own motion or on the application of a party to the proceedings, make an order requiring any person who is not a party to the proceedings to disclose to the Court such information as the Court considers relevant to the determination of the question of whether a missing person is alive or dead as may be specified in the order.

• (2) Nothing in subsection (1) shall impose a duty to disclose information—

• (a) which is permitted or required by any rule of law to be withheld on grounds of public interest immunity;

• (b) which any person would be entitled to refuse to provide on grounds of legal professional privilege;

• (c) if the disclosure of that information might incriminate the person disclosing the information, or his or her spouse or civil partner, of an offence.

• (3) Before making an order under subsection (1), the High Court must serve notice of its intention to make the order on any person who, in the opinion of the Court, is likely to be affected by the order.

• (4) The High Court may discharge or vary an order made by it under this section on an application made to the Court by any person affected by the order.

• (5) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to orders under this section.

• (6) This section binds the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.

Costs

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• (1) Where any costs are incurred by any person in connection with—

• (a) an application for a declaration under section 1; or

• (b) an application for a variation order,

the High Court may make such order as it considers just as to the payment of those costs by—

• (i) any party to the proceedings; or

• (ii) any person intervening in the proceedings where that person is not a party to the proceedings.

• (2) The High Court may order any costs payable in accordance with an order made under subsection (1) to be raised and paid out of the property of the missing person whose presumed death is the subject of the application to which the costs relate.

Power to amend certain time periods

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The Department may by order amend any time period (either by increasing or reducing that period) referred to in any of the following provisions—

• (a) section 1(1)(b);

• (b) section 2(1)(b); or

• (c) section 6(5).

Repeal of certain statutory provisions relating to presumption of death

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• (1) Subject to subsections (2) and (3), the following statutory provisions cease to have effect—

• (a) Article 21 of the Matrimonial Causes (Northern Ireland) Order 1978 (NI 15) (presumption of death and dissolution of marriage);

• (b) section 178 and section 196(2) of the Civil Partnership Act 2004 (c. 33) (presumption of death orders).

• (2) Article 21 of the Matrimonial Causes (Northern Ireland) Order 1978 continues to have effect in relation to any petition presented to the High Court under paragraph (1) of that Article before the date on which subsection (1) comes into operation.

• (3) Section 178 and section 196(2) of the Civil Partnership Act 2004 continue to have effect in relation to any application made under subsection (1) of section 178 before the date on which subsection (1) of this section comes into operation.

Register of presumed deaths

Register of Presumed Deaths

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• (1) The Registrar General must maintain, in the General Register Office, a register to be called the Register of Presumed Deaths.

• (2) The form in which the Register of Presumed Deaths is maintained is to be determined by the Registrar General.

• (3) Schedule 1 (further provisions about registration) has effect.

Supplementary