Tag: absentees

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

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30 Jul

The Absentee Act – Hull on Estates #121

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts Tags: , , , , , , , , , , 0 Comments

Listen to The Absentee Act

This week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.

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.

20 May

Missing and Presumed Dead?…or Just Absent?

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

The issue of when a missing person will be deemed to be deceased was most recently (and prominently) in the news during the search for Steve Fossett.  Notwithstanding the relatively short duration of time since his disappearance on September 3, 2007, circumstantial evidence suggested that, on a balance of probabilities, his death was a safe assumption and Fossett was declared legally dead on February 15 , 2008.

In Ontario, the Absentee Act deals with the situation in which a person is missing but about whom there is "no knowledge as to whether he or she is alive or dead."  In such a situation, the Court has the power to appoint a trust company or others to deal with that person’s affairs in the interim.  Interestingly, the term "Committee" (which also used to be the title given to the person now appointed as a "Guardian" under the provisions of the Substitute Decisions Act) still is used for this purpose.

The Act provides that certain persons including the Absentee’s spouse or (adult) child can make application to the court for a declaration of Absentee and the appointment of a Committee to manage such person’s property. 

The question that inevitably arises in any such situation is:  what if the Absentee in fact shows up one day, alive and well, and wanting to know what has happened to his or her property?  Of course, such situations are rare but not unheard of.  In such a case, the Committee will have the obligations of a fiduciary to account for the Absentee’s property.  The Committee will likely make a compelling argument that the Absentee’s assets ought to be available to fund the costs of making the application and compensating the Committee for safeguarding the Absentee’s assets.

David M. Smith

  

 

 

 

 

 

 

 

 

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