In What Situation Would the Presumption of Death be Applicable?

At common law, there is a presumption of death. The presumption is a legal declaration that a person is dead, even though there is insufficient evidence that a person is dead.

In What Situation Would the Presumption of Death be Applicable?

The presumption may be applicable where a person has gone missing for several years. The family of the missing person suspects they are dead, but there is no physical proof that they have in fact died. Pursuant to the presumption of death, that missing person will be legally presumed death after seven years.

What Purpose Does the Presumption of Death Serve?

The presumption is more than simply a legal declaration of death. It may also allow family members of the presumed deceased to have closure. Such closure may provide relief where the presumed deceased has been missing for several years.

There is also a financial purpose. Once there is a presumption of death, a person may apply for a grant of probate. Then the estate of the deceased may be distributed in accordance with their will if they have one.

Evidence to the Contrary

Note that this is a presumption. Presumptions come into play when there is insufficient or no evidence. Even though the presumption of death has great consequences, it can be rebutted with evidence to the contrary. That is, if there is evidence that a person is alive, then the presumption will not be applied, and they will not be declared legally dead.

If you have any questions regarding the presumption of death, contact one of the estate lawyers at Kantor LLP. We are happy to answer questions.