Premature Declarations of Death

March 26, 2014 Hull & Hull LLP Uncategorized 0 Comments

Earlier this month, Josh Eisen wrote a blog entry about disappearances and declarations of death.  Pursuant to the Declarations of Death Act, 2002, residents of Ontario can be declared dead, notwithstanding the failure to locate the person’s body.  While the Act can be a useful tool in situations where an individual has disappeared and is most likely dead, allowing for the administration of the presumed deceased’s estate, presumptions of death where the death may not have actually occurred can be problematic.  Two recent premature declarations of death in the United States highlight this issue.

Last month, a woman from St. Louis was required to commence a law suit against her bank in an effort to prove that she was still alive.  When the woman went to her local bank to apply for a mortgage, she was denied because the status on her credit report was “deceased”.  The death of the St. Louis resident was reported to Equifax by Heartland Bank, with the reason for this inappropriate change in status suspected to have been caused by human error in data entry or a technological glitch.  When the woman requested that the bank and credit agency amend her status to indicate that she was still living, they both failed to do so, despite the fact that there was no declaration of death by the court.

More recently, the Illinois Appellate Court dealt with the reappearance of a man who had been declared dead at the request of his sister several months earlier.  Not surprisingly, the Court accepted that the man was still living.  However, he ultimately was held responsible for paying the legal fees incurred in the administration of his own estate.  The Illinois Probate Act specifically allows the administration of an estate to be commenced upon a presumption of death.  As with confirmed deaths, the compensation for legal assistance in estate administration is paid out of the assets of the estate.  The Appellate Court considered the legal fees to be a charge on the man’s estate, despite the fact that he was still living, and he was ordered to return some of his own money to satisfy this debt, as the “beneficiary” of his own estate.

These examples serve as a reminder that tools like the Declarations of Death Act should only be consulted when there is absolute certainty that the individuals intended to be presumed dead are not still living.

Thank you for reading.

Suzana Popovic-Montag

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