Section 4Part 2 — PRESUMPTION OF DEATH ORDER
Presumption of death order in respect of missing person
←→ Navigate · Click subsection badges to collapse · Press ? for help
An applicant may, subject to the conditions in this section, apply for a presumption of death order in respect of a missing person.
An application for a presumption of death order shall be accompanied by an affidavit by the applicant which shall contain the following information —
specific evidence tending to indicate that the missing person is dead, including —
the circumstances surrounding the disappearance of the missing person;
absence of communication with persons who would be likely to hear from the missing person, including last known correspondence or communication; and
the length of time since the disappearance;
the date on which the missing person was last heard from by any person;
evidence of advertising for information concerning the whereabouts of the missing person, including where relevant, evidence of using the internet and social media to obtain such information, unless there are exceptional reasons for not doing so, explained by the applicant;
where relevant and practicable, evidence from a search organisation that confirms that attempts were made to locate the missing person but were fruitless;
the full background relating to the disappearance of the missing person, including the missing person's age and physical and mental health;
where relevant and practicable, evidence of corroboration from a family member of the missing person (if the applicant is not a family member);
where relevant, the next-of-kin entitled to distribution of the assets of the missing person on the death of the missing person; and
a declaration by the applicant of the applicant's belief that the missing person is dead.
A presumption of death order may be made by the court where the court is satisfied that —
the missing person has not been known to be alive for a period of at least seven years; or
in respect of the missing person, the circumstances of the person having gone missing indicate that the person's death is —
virtually certain; or
highly probable.
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 —
the time, location, and circumstances of the disappearance;
where relevant, the abandonment of valuable property;
where relevant and practicable, the extent and nature of post-disappearance searches;
the presence or absence of a motive for the missing person to remain alive but disappear;
where relevant, evidence suggesting that the disappearance was a consequence of foul play;
where relevant, the time between a life assurance policy being obtained on the life of the missing person and the missing person's disappearance; and
where relevant, any prior history of fraud involving the missing person.
Without prejudice to the rebuttable presumption in subsection (6), and subject to the requirements of this section, an application for a presumption of death order may be made —
where the application is to the effect that where, by reason of absence from the Islands or otherwise, it remains uncertain for a period of at least seven years as to whether a missing person is alive;
where the application is to the effect that death is virtually certain, at any time after a person has gone missing and such application shall not be subject to a minimum waiting period; or
where the application is to the effect that death is highly probable, no earlier than one year after the person has gone missing.
Where, by reason of absence from the Islands or otherwise, it remains uncertain for a period of at least seven years as to whether a missing person is alive, it shall continue to be presumed that the person is dead.
Where the court makes a presumption of death order and is satisfied that the missing person has died on a specific date, the presumption of death order shall include a finding as to the date and time of death.
Where the court makes a presumption of death order but is uncertain when, within any period of time, the missing person died, the presumption of death order shall provide that the missing person died at the end of that period.
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 seven years, the presumption of death order shall include a finding that the missing person died at the end of the day occurring seven years after the date on which the missing person was last known to be alive.
An applicant may —
in the case of proceedings determined by the summary court, appeal to the Grand Court; and
in the case of proceedings determined by the Grand Court, appeal to the Court of Appeal,
in accordance with Rules of Court against a presumption of death order within twenty-one days after the making of the order or such longer period as may be provided by Rules of Court.
Subsections (7), (8) and (9) and section 5 shall apply only if —
there has been no appeal against the presumption of death order and the period for bringing an appeal has ended; or
there has been an appeal against the presumption of death order and the appeal, and any further appeal, has been unsuccessful.
For the purposes of subsection (11), an appeal has been unsuccessful if —
it has been dismissed or withdrawn; and
any period for bringing a further appeal has ended.