In a recent case the Court had to decide whether a person named as an Executor had standing to bring an application for a Declaration of Presumed Death under the Presumption of Death Act 2013.
Caroline Fisher went missing on 29 January 2022 having driven from her home in Cheltenham to Cornwall. She was last seen on the Roseland Peninsula in Cornwall entering the sea. The 62-year-old’s distinctive turquoise Mini Cooper was found parked at Porthcurnick Beach near Porthscatho,
Caroline Fisher had no spouse, partner or children. She was an only child and her parents had died many years before she was last seen. She did have two cousins who survived her.
In April 2023 HHJ Matthews sitting in the High Court in Bristol heard an application for a grant of a Declaration of Presumed Death under the Presumption of Death Act 2013. The application was brought by Ms Fisher’s close friend Kerry Tolley.
By a Will made by Caroline Fisher in September 2020 she appointed Kerry Tolley as one of her Executors. Kerry Tolley brought the application for the Declaration of Presumed Death to allow her to apply for a Grant of Probate and administer the Estate.
The Presumption of Death Act 2013 provides that a declaration can be issued by the Court if it is persuaded that the person has died or if they have not been known to be alive for a period of 7 years.
In the case of Caroline Fisher the Court was persuaded that it was most likely that she had died given the circumstances in which she disappeared.
The Presumption of Death Act 2013 goes on to provide, however that
“The court must refuse to hear an application under this section if—
(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and
(b) the court considers that the applicant does not have a sufficient interest in the determination of the application”
The question HHJ Matthews considered was whether a person named as an Executor in an unproved Will had standing to bring the application given that there was no spouse, civil partner, parent, child or sibling who could apply. Is the person who is named as an Executor a person with “a sufficient interest in the determination of the application”?
The term “sufficient interest” is not defined in the Act.
HHJ Matthews noted that even where there is a Will appointing an Executor, until a Grant of Probate is issued it may be that the validity of the Will could be challenged or that a later Will appointing a different Executor might be located. Did the person appointed have “sufficient interest” to make the application for the declaration even if they have not proved the Will?
Of course the entire question is a little “chicken and egg” given that in order to apply for the Grant of Probate a person would have to either produce the Death Certificate if they act personally or confirm the date of death if they act via a Solicitor. With no body it is hard to confirm the date of death. Certainly no Death Certificate will have been issued.
On balance, and considering carefully the position if there had been an intestacy (no Will) and the persons who might have standing then to make the application, HHJ Matthews concluded that the Executor of an unproven Will did have a sufficient interest in the determination of the application to allow the matter to be heard, confirming
“a person who intends to prove a testamentary paper does have a sufficient interest in applying for a declaration of presumption of death, even though the paper has not yet been proved”
A decision to make an application for a Declaration of Presumed Death is an incredibly difficult one for family members but can often be a practically necessary step. Our Team have experience in making such applications and can assist if you find yourself in this most difficult of situations.
Please contact Jennifer Laskey at [javascript protected email address] for more information on this subject.
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