Declarations of Death Act – Hull on Estates Podcast #118

July 7, 2008 Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Declarations of Death Act

This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

 

Declarations of Death Act – Hull on Estates Podcast #118

Posted on July 8th, 2008 by Hull & Hull LLP

Rick Bickhram: Hello and welcome to Hull on Estates. You’re listening to Episode 118 on Tuesday, July 8th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Sean Graham: Hi and welcome to another episode of Hull on Estates. I’m Sean Graham.

Rick Bickhram: And I’m Rick Bickhram.

Sean Graham: If you want to be heard on Hull on Estates, you can actually participate in our discussion by leaving a comment. Just give us a call at 206-350-6636. The phone number is in the show notes as well, along with our e-mail address which is hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Rick Bickhram:   Today we’re going to discuss an interesting topic and one of the topics that we’re going to be discussing is what happens when a person goes missing from a jurisdiction and what are some possible remedies that a person can use and apply to the Court to seek some relief in that regard.

Sean Graham: The manner in dealing with unexplained disappearances where a person wants to apply to the Court and obtain a declaration that somebody has died is the Declarations of Death Act, and maybe if we could, I’ll just ask you some questions about that Act, Rick. Can you maybe tell me about the circumstances in which the Court might make a declaration that someone has died?

Rick Bickhram: Okay, well the Declarations of Death Act, it’s quite interesting to know that this Act was implemented as a result of 9-11. In addressing Sean’s question, there are two situations here where a Court can address or deal with where a person has been missing. And if a person has been missing for seven years, and there is no evidence of his existence within that seven years, a person can apply to the Court, such as an executor or interested party, to have the person declared dead. An alternative to that, though is let’s say there has been some small badges of evidences within that seven years that the person does exist. Sufficient inquiry has been done but it’s coming up where the person cannot be found and he went missing in a circumstance of peril, a Court could declare that person dead. Now the question begs, what is a circumstance of peril? What has the Court said in this regard?

Sean Graham: Yeah, and I think what we’re talking about here is in Section 2 of the Declarations of Death Act, subsection 2(4) is the one that talks about the circumstances of peril, and of course, that’s a fairly new Act so there aren’t a lot of examples. Obviously, if an individual was in the World Trade Center in 9-11, that pretty obviously would meet any description, but there haven’t been a lot of cases since. Now under that subsection (4), there’s other criteria that you have to meet if you want an order that a person is deceased. And another one is that the applicant has not heard of or from the individual since the disappearance.  Another is that the applicant has made reasonable inquiries and no one else has heard from the individual since the disappearance. The applicant must have no reason to believe that the individual is alive and there must be sufficient evidence to find that the individual is dead. And so that’s the circumstances of peril section and it’s noteworthy that there is no time restriction in that section, so that, you know, in theory, after 9-11, well after the statute was passed anyway, this application could have been brought immediately and provided those five criteria were met, the Court would be in a position to issue a declaration that the person had died.

Now there’s also subsection (5) and maybe Rick you can take us through this. This is not a circumstances of peril section, but this section is related to a time period.

Rick Bickhram: Well touching upon one of the ways you can obtain a Declaration of Death order applies to the seven year rule. If there’s no evidence of the existence of this person within seven years, this subsection (5) here pretty much says that (a) if the individual has to be absent at least seven years, for the seven year rule to apply, obviously, (b) says the applicant has not heard of or from the individual during the seven year period, (c) to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual during that seven year period. So, I guess the moral of the story under this particular subsection is to make sure that you papered very well any reasonable inquiries that you’ve made.  Subsection (d) the applicant has no reason to believe that the individual is alive and (e) there is sufficient evidence to find that the individual is dead.

Sean Graham: But for the first factor in each of those two subsections, the remaining ones are all the same. So if you’re well within the seven year period then the circumstances of peril is going, the facts leading to the circumstances of peril, is going to be of particular interest.  And then with respect to a seven year absence, you’re going to have to prove the date from which the absence commenced, and of course, that it has been at least seven years since. So those are the two ways to apply and maybe now, Rick, we can talk about who can actually apply under this statute.

Rick Bickhram: Well subsection (1) pretty much clarifies who would have standing to apply under this statute for such an order. In this Act, an interested person basically means any person who is or would be affected by an order that declares the person dead. This could include the executor or estate trustee in the individual’s Will, a person who may be entitled to apply for a certificate of appointment here, the individual’s spouse, the individual’s next-of-kin, a guardian of attorney for personal care or property for the missing individual, a person who is in possession of property owned by that individual.  I don’t know if he owned a Ferrari and is hiding out somewhere. If there is a contract of life insurance or group insurance, insuring the individual’s life, the insurer or any potential claimant under that insurance policy, if the individual had been declared an absentee under the Absentees Act, a Committee of his or her estate. So the Absentees Act is another statute which allows the person to declare the person incapable and the Court could appoint a Committee for that absent person and the Committee basically here would be entitled to some notice in that regard.

Sean Graham: And it’s interesting and noteworthy that spouse, spouse is an interested person and we should point out that that includes both married spouse and also either of two persons who live together in a conjugal relationship outside marriage.  So not exactly the definition of common-law spouse but in fact, I’d say it’s a more liberal definition to include common-law spouses or very close conjugal relations. 

So Rick, maybe you can explain the basic differences between the Declarations of Death Act, which is a relatively new statute and the Absentees Act which has been around for quite some time.

Rick Bickhram: Well to distinguish between the two statutes, what I’m going to look at is the scope of the order. Now under the Absentees Act, an applicant who obtains an order that a person is absent basically would be entitled to take custody, due care and manage the assets of the absentee, the assets of the person who is missing. Under the Declarations of Death Act, the scope of the order here pretty much says under subsection (6) that the declaration of death applies for all purposes unless the Court orders otherwise. Now just looking at the way these statutes are written on its face, it’s clear that the Declarations of Death Act is a little bit more broad in the scope of the statute as opposed to the Absentees Act and the reason for that is the Absentees Act limits the applicant that the Court may make an order for the custody, due care and management of the property and the declarations of death says it pretty much can make a declaration for death which is applicable to all purposes unless ordered otherwise.

Sean Graham: Yeah and it’ll be interesting to see how the Courts apply the possibility of limitations on these orders if and when the case law starts to come through on the statute. But in the meantime, it looks to be a pretty broad statute, allowing for some fairly strong orders by the Court as long as, of course, there’s one would think you’d have to meet quite a high evidentiary standard in order to show that there is sufficient evidence that someone is dead and, that in fact, there’s no reason to believe that they are alive. But it seems that if you can meet that standard, then probably the Court will be in a position to make broad orders arising from an apparent death of an individual.

Rick Bickhram: Now looking at the order in an estates context where the Court can declare someone dead, how would this affect an estate? First of all, there would be no estate unless you can declare the person dead. So if the person is missing for seven years, you may need an order to declare this person dead so you can just establish estates and then you may be bringing claims against an estate or defending claims in that regard. What other, I guess, ideas or suggestions do you think this sort of declaration would help a person in the estates context, Sean?

Sean Graham: Well, for example, one thing that comes to mind is somebody who might want to claim against an estate, whether a family member or someone else.  Say, just as an example, a dependent’s support claim under Part V of the Succession Law Reform Act. It would be impossible to bring that claim, of course, unless there is a finding that someone who has disappeared is deceased. And the support available under a dependent’s support claim might be a great deal higher than just regular family law child or spousal support and it might include also people who might not otherwise be entitled to it. So, that’s one wrinkle I could see where this statute may come in handy, again provided all the facts are there to meet the burden and the statute.

And I think it’s worth reading the Act. It’s not a long Act, there’s only really 14 sections, some of them fairly long, but it’s an interesting read. There’s one thing that came to mind which I find interesting is that if the Court does make a declaration of death and it turns out after the fact that the individual was in fact alive, and shows up, then the distribution of an individual’s estate according and following one of these orders, is final. And so, in theory, it could be a very sad circumstance where somebody is declared dead based on valid evidence and so forth, but then it turns out to have been incorrect and the person is alive and by the time they resurface, there’s a chance that all their property could have been distributed and so they would really be out of luck. That, I think, is why the standard for finding or for making a declaration of death needs to be, one of the reasons it needs to be so high.

Rick Bickhram: I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Sean.

Sean Graham: Yeah it was a pleasure, Rick. I look forward to podcasting with you again, soon.

Rick Bickhram: And we look forward to hearing from our listeners. You send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line. You could reach us there at 206-350-6636. Please be sure to visit us on our blog page which is at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Rick Bickhram.

Sean Graham: And I’m Sean Graham. Until next week, so long.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

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