What Happens When a Missing Person Comes Back From the “Dead”?

March 10, 2017 Umair Estate & Trust, Executors and Trustees, General Interest, In the News Tags: , , , , , 0 Comments

This week, I have been blogging about the case of Anna and Kym Hakze, two sisters from Alberta who were found more than thirty years after they last made contact with their families.

I blogged about the Ontario Absentees Act, which allows for a missing person’s affairs to be put under the management of a committee if the Court is satisfied that a “due and satisfactory inquiry” has been made into their whereabouts. Yesterday’s blog talked about the Declarations of Death Act, 2002, which gives the Superior Court of Justice of Ontario the power to declare that a missing person is dead if the Court is satisfied that they disappeared in circumstances of peril or that they have been absent for at least seven years.

But the case of the Hakze sisters raises another interesting legal question: what happens in Ontario when a missing person, who has been declared an absentee under the Absentees Act or dead under the Declarations of Death Act, 2002, is later found to be alive?

When an absentee is no longer an absentee

As previously discussed, section 4 of the Absentees Act empowers the Court to make an order for the appointment of a committee for the custody, due care and management of the property of the missing person. The committee has the same duties and powers as a guardian of property under the Substitute Decisions Act, 1992.

However, section 3 of the Absentees Act states that a Court can make an order declaring and superseding, vacating and setting aside an order declaring a person as an absentee on an application, if it is satisfied that the person has ceased to be an absentee.

It is important to note that any acts or things done in respect of the estate of the absentee while the original order was in force are excepted from section 3 of the Absentees Act. Thus, the Act does not purport to undo any steps that were taken by the committee to manage the person’s property while the person was an absentee.

The legal effect of coming back from the “dead”

Once a missing person has been declared dead pursuant to the Declarations of Death Act, the assets of their estate may be administered and distributed. But what happens if the missing person is later discovered to be alive?

Pursuant to subsection 6(1) of the Act, if an order has been made that applies for the purposes of dealing with the missing person’s estate and all or part of the estate has been distributed in accordance with the order, the distribution is final and the missing person is not entitled to recover the distributed property.

It should be noted subsection 6(1) does not apply if the personal representative had reasonable grounds to believe that the missing person was not, in fact, dead. If this is the case, the personal representative should not take any steps to administer the missing person’s estate until the order is confirmed by the Court.

The Act does provide the Court with discretion, if it is of the opinion that it would be just to do so, to make an order requiring a person who was in receipt of the missing person’s property to reconvey the property or pay a specified amount to the missing person. In making such an order, the Court considers all the circumstances, including any inconvenience or hardship to the person subject to the order. However, absent such an order, any property that has been properly distributed is deemed to belong to the recipient.

Any undistributed property that has not been distributed when the missing person is discovered to be alive remains their property and is deemed to be held in trust pursuant to the Trustee Act.

Thank you for reading,

Umair Abdul Qadir

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