Tag: Absentees Act

02 Nov

Missing and Presumed…Alive? Property Rights under the Absentees Act

Garrett Horrocks Estate & Trust, Estate Planning, Executors and Trustees, Hull on Estates, Public Policy, Trustees Tags: , , , , , 0 Comments

On Monday’s blog, I discussed the mechanisms available to Ontario courts under the Declarations of Death Act to deal with the estate of a deceased person who “returns from the dead.”  In today’s blog, I thought it might be useful to look at similar provisions under Ontario’s Absentees Act and to distinguish between the purpose of each Act as well as the authorities of the court thereunder.

The most obvious distinction is evident in the titles of each Act.  The Declarations of Death Act, unsurprisingly, concerns individuals that have been declared deceased by the courts.  In contrast, and perhaps even more unsurprisingly, the Absentees Act deals with “absentees.”

The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.
The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.

An absentee is defined under section 1 of the Absentees Act as a person, ordinarily resident in Ontario, who “has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.”  Similar to the analogous provision in the Declarations of Death Act, section 2 of the Absentees Act allows the Superior Court of Justice to declare a person to be an absentee if a “due and satisfactory inquiry has been made.”

 

The difference in finality of an order declaring an individual to be deceased rather than merely an absentee is also reflected in the authority given to the courts in dealing with an individual’s property under each Act.  Once an individual is declared deceased, that individual’s property is subject to distribution in accordance with any testamentary documents that he or she may have left, such as a will.  Without going into significant detail, the property rights of the testator as well as those of any beneficiaries will be substantially impacted as a result of a declaration of death.  The courts will be reluctant to trigger these rights absent a conclusive determination of death.

As a result of the foregoing, the Absentees Act gives no authority to the courts to order distributions of property pursuant to a testamentary document.  In effect, the authority of the courts over the property of an absentee is severely limited, at least until he or she is declared as such in accordance with the Declarations of Death Act, or unless evidence of his or her death is produced.

Rather than create circumstances that may trigger distributions of an absentee’s property, the Absentees Act may require an individual to instead ensure its upkeep while the absentee is, well, absent.  Section 4 of the Absentees Act allows a court to make an order to ensure the “custody, due care and management” of an absentee’s property by a committee, if needed.

This appointee would essentially function as a caretaker of the absentee’s property.  The committee has all of the powers and duties of a guardian of property under the Substitute Decisions Act, including the authority to expend the absentee’s own funds for the purposes of determining whether he or she is alive or dead.

Thanks for reading.

Garrett Horrocks

10 Mar

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

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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09 Mar

Missing Persons and Declarations of Death

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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07 Mar

The Absentees Act: Administering the Assets of Missing Persons

Umair Estate & Trust, General Interest, In the News, News & Events, Power of Attorney Tags: , , , 0 Comments

Last week, the news of the location of two Alberta sisters who had been missing for more than thirty years made headlines across the country.

Anna and Kym Hakze, originally from Lethbridge, Alberta, were last seen in the mid-1980s and last heard from in 1993. The sisters were formally reported as missing in 2003.

The case for the search for the sisters went cold, and local police went as far as submitting the family’s DNA to detectives during the investigation of convicted serial killer Robert Pickton in British Columbia. As reported on CBC News, a 1984 newspaper clipping and a tip from the public ultimately provided a breakthrough and helped police locate the sisters’ whereabouts.

Who administers a missing person’s property?

The story of the Hakze sisters is particularly newsworthy because of how uncommon it is for a missing person to be found after such a significant length of time. In a press release issued by the Lethbridge Police Service, Staff Sergeant Scott Woods noted, “After so many years it’s very unusual for a case like this to end with good news.”

Unfortunately, many families of missing persons are only left with unanswered questions. In addition, the missing person’s assets may be left unmanaged and unadministered, which can be particularly problematic if the person has creditors or dependants who require immediate access to these funds.

In Ontario, the Absentees Act creates a legal mechanism for a missing person’s affairs to be put under the management of a committee.

The “due and satisfactory inquiry” requirement

The Act provides the Superior Court of Justice to declare a person to be an absentee, if it is shown that “due and satisfactory inquiry” has been made regarding their whereabouts. The Court also has the power to direct such further inquiries to be made and proceedings to be taken as the Court considers expedient before an order is made.

It should be noted that a simple missing person report prepared by the police may be insufficient to justify a declaration under the Absentees Act. Applicants must be prepared to demonstrate that they have conducted reasonable, independent inquiries into the missing person’s whereabouts.

An application under the Absentees Act can be made by the Attorney General; any one or more of the missing person’s next of kin; the missing person’s married or common law spouse; a creditor; or any other person.

Appointment of a committee

If the Court is satisfied that there is sufficient evidence to declare the missing person to be an absentee, section 4 of the Act also empowers the Court to appoint a committee for the custody, due care and management of the absentee’s property. A trust corporation may be appointed as such a committee, with or without other persons.

Where such a committee is appointed, section 6 of the Act states that the powers and duties of the Court and the committee are the same as the powers and duties of the Court and of a guardian of property under the Substitute Decisions Act, with necessary modifications. Thus, the Absentees Act imports the requirements that apply to the management of the property of incapable persons in Ontario.

The Absentees Act provides a useful remedy for families of missing persons and other interested parties. Later this week, I will be blogging about the Declarations of Death Act, 2002, and the circumstances in which a Court will declare a person to be dead.

Thank you for reading,

Umair Abdul Qadir

Other Articles You May Be Interested In:

18 Apr

Missing Persons Part 1 – The Absentees Act.

Hull & Hull LLP Estate & Trust, Trustees Tags: , , , , , 0 Comments

We sometimes hear reports in the news of people going missing. In such circumstances, what happens to their property? One option is for someone to apply to be a committee so that they may have the authority manage the missing person’s property in their absence. 

Pursuant to section 1 of the Absentees Act, R.S.O. 1990, c. A.3, an absentee is a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts are unknown and as to whom there is no knowledge as to whether he or she is alive or dead. 

An application may be made by pretty much anyone pursuant to section 2(2):

a)      the Attorney General;

b)      any one or more of the next of kin of the alleged absentee;

c)      the person to whom the alleged absentee is married;

d)      the person with whom the alleged absentee was living in a conjugal relationship outside marriage immediately before the absentee’s disappearance;

e)      a creditor; or

f)        any other person.

Pursuant to section 2(1), the Ontario Superior Court of Justice may declare a person to be an absentee if it is shown that “due and satisfactory inquiry” has been made into their disappearance.

In the case of Kamboj v. Kamboj, 207 CanLII 14932 (ON S.C.) Justice Quinn provides an informative and instructive discussion of what is required to find a person an absentee under the Act. Here are some of the factors to be considered with respect to whether satisfactory inquiry has been made:

a)      Are the applicants the only close relatives of the alleged absentee?

b)      Does the alleged absentee have other relatives or friends in Ontario or elsewhere and, if so, do they have relevant information?

c)      Have inquiries been made at establishments that the alleged absentee frequented?

d)      Have inquiries been made at any clubs, religious, community or social organizations to which the alleged absentee belonged?

e)      Have inquiries been made with the alleged absentee’s family doctor?

f)        Has a notice been published in a local newspaper, containing the alleged absentee’s picture and soliciting information in respect of their whereabouts? Did the disappearance attract media attention?

g)      Did the alleged absentee have a will?

h)      Did the alleged absentee have any creditors? If so, do they have relevant information?

If satisfactory inquiry has been made and the missing person is declared to be an absentee, a committee will be appointed. The committee will have to submit a management plan setting out how they propose to manage the absentee’s property.

If the Court is later satisfied that the person has ceased to be an absentee, it may make a declaration to that effect and set aside the order declaring the person an absentee for all purposes, except for things done in respect of the absentee’s estate while such order was in force.

Sharon Davis – Click here for more information on Sharon Davis.

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