No
death certificate or interim death certificate can be issued
where there is no body. Without proof of death, the assets
of the missing person are frozen. This can leave their relatives
in financial hardship as they are unable to inherit the assets
of the missing person or sell property belonging to them.
Problems may also arise in the case of assets held in joint
names. In addition, Insurance Companies will generally
refuse to settle policy claims without proof of death.
In English Law there
is a general presumption of death if a person has been
missing for a seven year period. However evidence is still
required to support the order, and the onus of proof falls
on the person to whom financial entitlement would pass.
The seven year rule was intended to stop people from going
missing deliberately, and thus being absolved from their
financial and legal responsibilities.
However, it is possible
to obtain an order for leave to swear death in the Probate
Registry earlier. This will facilitate the issue of a Grant
of Representation,
and access to the estate of the presumed deceased. The onus
of proof still remains with the heirs to investigate thoroughly
the circumstances surrounding the disappearance of the missing
party and to provide evidence that the missing person has
not been in touch and is not simply seeking to absolve himself
of his financial and legal responsibilities. This often comes
from evidence provided by the family and friends, credit
card and bank statements, mobile telephone accounts, and
accounts generally. It is however a little more difficult
to obtain the relevant information if the disappearance occurs
abroad. Often families depend on the support and information
gained by the Foreign Office by way of local police reports
and expert evidence and local witnesses. In the case of disasters
where more than one person is missing, presumed dead, a record
is kept at the Principal Probate Registry, setting out
the type of evidence required.
So far as the families
of the missing persons in the Tsunami are concerned, the
Home Office released a statement by Douglas Alexander on
the 20th January 2005 that ÒÉas
a response to the exceptional circumstances we face, the
Foreign Office, at the request of families, will issue
death certificates for missing British nationals, where
no body has been found, based on evidence provided by the
British Police..Ó The statement sets out the four
tests to be applied by the police and concluded by stating
that the process to be put in place for the issue of death
certificates was sensible contingency planning for circumstances
that may be encountered at a later stage.
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