Civil Law (Presumption of Death) Act 2019

Presumption of death order in respect of missing person

5. (1) An applicant may, subject to the conditions in this section, apply for a presumption of death order in respect of a missing person.

(2) An application for a presumption of death order shall be grounded on an affidavit by the applicant and shall contain the following:

(a) specific evidence tending to indicate that the missing person is dead, including—

(i) the circumstances surrounding the disappearance of the missing person,

(ii) absence of communication with people who would be likely to hear from the missing person, including last known correspondence or communication, and

(iii) the length of time since the disappearance;

(b) the date when the missing person was last heard from;

(c) evidence of advertising for information concerning the whereabouts of the missing person, including where relevant by using the internet and social media (unless there are exceptional reasons for not doing so, explained by the applicant);

(d) where relevant and practicable, evidence from a searching organisation that confirms that attempts were made to locate the missing person but were fruitless;

(e) the full background relating to the disappearance of the missing person, including the missing person’s age and health (including mental health);

(f) where relevant and practicable, evidence of corroboration from a family member of the missing person (if the applicant is not a family member);

(g) where relevant, the next-of-kin entitled to distribution of the assets of the missing person on his or her death;

(h) a declaration by the applicant of his or her belief that the missing person is dead;

(i) the required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the applicant.

(3) A presumption of death order may be made by the Court where the Court is satisfied that, in respect of the missing person, the circumstances of the person having gone missing indicate that his or her death is—

(a) virtually certain, or

(b) highly probable.

(4) In determining whether a presumption of death order is to be made under this section, the Court shall take into account all the circumstances surrounding the disappearance and absence of the missing person, including the following:

(a) the time, location, and circumstances of the disappearance;

(b) where relevant, the abandonment of valuable property;

(c) where relevant and practicable, the extent and nature of post-disappearance searches;

(d) the presence or absence of a motive for the missing person to remain alive but disappear;

(e) where relevant, evidence suggesting that the disappearance was a consequence of foul play;

(f) where relevant, the time between a life assurance policy being obtained on the life of the missing person and his or her disappearance;

(g) where relevant, any prior history of fraud involving the missing person.

(5) (a) Without prejudice to the rebuttable presumption in paragraph (b), and subject to the requirements of this section, an application for a presumption of death order may be made—

(i) where the application is to the effect that death is virtually certain, at any time after a person has gone missing, such application not to be subject to a minimum waiting period, and

(ii) where the application is to the effect that death is highly probable, no earlier than 1 year after the person has gone missing.

(b) Where, by reason of absence from the State or otherwise, it remains uncertain for a period of at least 7 years as to whether a missing person is alive, it shall continue to be presumed that the person is dead.

(6) (a) Where the Court makes a presumption of death order and is satisfied that the missing person has died on a specific date, the order shall include a finding as to the date and time of death and, where it is uncertain when, within any period of time, the missing person died, the order shall provide that he or she died at the end of that period.

(b) Where the Court makes a presumption of death order and is satisfied that the missing person has not been known to be alive for a period of at least 7 years, the order shall include a finding that the missing person died at the end of the day occurring 7 years after the date on which he or she was last known to be alive.

(7) Where the Court makes a presumption of death order, that order shall include those required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the Court.