Missing Persons and Declarations of Death

March 9, 2017 Umair Estate & Trust, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Power of Attorney, Trustees Tags: , , , , , 0 Comments

Earlier this week, I blogged about the astonishing case of Anna and Kym Hakze, two Alberta sisters whose whereabouts were discovered more than thirty years after they had been missing. I also discussed the Absentees Act, which creates a legal mechanism in Ontario for a missing person’s affairs to be put under the management of a committee.

In today’s blog, I will be discussing the Declarations of Death Act, 2002, which provides the Court with the authority to declare a missing person as dead.

Declarations of Death Act, 2002: an overview

Pursuant to section 2 of the Declarations of Death Act, 2002, an “interested person” can apply to the Superior Court of Justice of Ontario, on notice to any other interested persons of whom the applicant is aware, for an Order declaring that an individual is dead.

The Court will grant such relief if it is satisfied that the missing person has disappeared in circumstances of peril (pursuant to subsection 2(4) of the Act) or if they have been absent for at least seven years (pursuant to subsection 2(5) of the Act).

Who is an “interested person”?

An application for a declaration of death can be commenced by an “interested person,” a term that is defined at section 1 of the Act.

In addition to next of kin and married and common-law spouses, the Act defines “interested person” to include:

  • a person named as an executor of the individual’s Estate under a Will or a person who may be entitled to be appointed as an administrator of the Estate on an intestacy;
  • a guardian or attorney for personal care or property under the Substitute Decisions Act;
  • a person who is in possession of property owned by the missing individual;
  • if there is a contract of life insurance or group insurance insuring the missing individual’s life, the insurer and any potential claimant under the contract; and
  • if the missing individual has been declared an absentee under the Absentees Act, the absentee’s committee.

The test for a declaration of death

An applicant must satisfy the Court, on a balance of probabilities, that:

  • the individual has disappeared in circumstances of peril or been absent for at least seven years;
  • the applicant has not heard of or from the individual since the disappearance or during the seven-year period;
  • to the applicant’s knowledge (after making reasonable inquiries), no other person has heard of or from the individual during the seven-year period;
  • the applicant has no reason to believe that the individual is alive; and
  • there is sufficient evidence to find that the individual is dead.

In the event that the Court is not satisfied that there is sufficient evidence to declare the person dead, section 3 of the Act provides the Court with the ability to provide the alternative relief of making an Order under the Absentees Act.

What are “circumstances of peril”?

In considering whether to bring an application under subsection 2(4) of the Act, an applicant must consider if the circumstances in which the individual disappeared would constitute “circumstances of peril.”

Although such circumstances are not defined under the Act, the Court has held that “peril” means a “situation of serious and immediate danger.” The Court will undertake a fact-specific inquiry, and the applicant should ensure that there is sufficient evidence to conclude that the missing individual was in serious and immediate danger prior to their disappearance.

Thank you for reading,

Umair Abdul Qadir

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