I am instructed by an executor of an estate who it is alleged partially administered an estate some 10 years ago. Not dealt with at the time were a number of shareholdings belonging jointly to the deceased and her son. At the time of administering the rest of the estate the son was missing and had been for almost 20 years, he is still missing. The beneficiaries under the will have alleged that these shares should have been dealt with at the time and I’m instructed to investigate the position (and claim them by the estate if possible).
In order for these shares to fall into the mother’s estate, my thinking is that the son would need to have either pre-deceased or be presumed to have pre-deceased his mother. Does anyone have any experience of obtaining a declaration of presumed death? In particular whether such a declaration can be obtained to declare that death is presumed at a date earlier than the order is obtained ie can I, in 2017, apply for a declaration that death is presumed to have occurred in 2007.
In my opinion, a declaration of presumed death at any date after the mother’s death would not benefit the estate and would therefore be a step to be taken by those persons entitled on intestacy to the son’s estate, rather than by (and at the expense of) the estate.
I’d be grateful for any assistance/guidance that can be offered including any alternative solutions to collecting in the shares on behalf of either the mother’s estate or the son’s estate.
Yes, you can apply for a declaration that the death happened at a date earlier than the order and, depending on the available evidence, you may be obliged to do so.
Where the court is satisfied that the missing person has died, the court will make a finding as to when that was. If they died at some point during a known period, the court will declare that they died at the end of that period.
Where the missing person has not been known to be alive for more than seven years, the court will declare that they died at the end of that period.
In a case I did, the missing person left home apparently in the clothes she stood up in and was never seen or heard from again. The conjecture was that she had went for a walk in the woods nearby and met with some misfortune. The court declared that she had died at the end of one week from the date on which she went missing.
In your case, if the son disappeared in 1987, it sounds as though the court is likely to declare that he died in 1994. The declaration rules are expressed in mandatory terms, so that it doesn’t seem to be possible to get a declaration for a different date, even if that would be more desirable for tax or succession reasons.
Are the family able to stand the cost of an enquiry agent – to ascertain whether the missing son is alive and traceable, or dead and the date of death compared to that of your deceased? That would seem to be the next step to take (and the family might consider that the cost might outweigh the value of the shares).
Perhaps cost is one of the reasons why the shares were not dealt with – because it was hoped that the son would turn up.
Colemans Solicitors LLP