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Family Law

The leading authority on all aspects of family law

07 AUG 2012

Missing people and their property: the case for interim administration

James Brown
Barrister, Senior Lecturer in Law, Aston University

Mark Pawlowski
Barrister, Professor of Property Law, School of Law, University of Greenwich

Although English law currently provides for a common law presumption of death where a person has been missing for a continuous period of 7 years, there is no provision which allows the family of a missing person, during the interim period, to apply to court for interim management of the missing person's property and assets in his absence. A Presumption of Death Bill was tabled in 2008, modelled on the equivalent legislation which already exists in Scotland and Northern Ireland, providing for a new statutory procedure for application by an interested party to the High Court for a declaration of presumed death. The Bill, however, did not include any provision for interim administration. Most recently, in February 2012, the House of Commons Justice Committee published a report, Presumption of Death (HC 1663), recommending, inter alia, a statutory presumption of death and the introduction of guardianship orders to enable the financial management of missing persons' affairs prior to a court declaration of presumption of death. The authors argue that an interim administration scheme (along the lines already recommended by the Irish Law Commission in December 2011) could be implemented with relative speed and independently of any new statute dealing with presumption of death by adding specific provisions for the administration of property of a missing person (by simple amendment) into our existing legislation contained in ss 16-20 of the Mental Capacity Act 2005.

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