bristol civil justice centre

High Court rules executor can seek declaration of presumption of death

The High Court of England and Wales has ruled a nominated executor of an unproven will has standing to seek a declaration of presumption of death of a missing person.

Under s1(5) Presumption of Death Act 2013, if the court is satisfied that a person has died or has been missing and not known to have been alive for seven or more years their spouse, civil partner, parent, child, or sibling can seek such a declaration.

The declaration then enters the Register of Presumed Deaths and services as proof of death in lieu of a death certificate for the purpose of applying for a grant of probate.

Under the Act, anybody else seeking a declaration of presumption of death must have sufficient interest in the determination of the application, and in Re Tolley [2023] EWHC 979 (Ch), it was confirmed that a named executor met the criteria.

In the case, the missing person, Caroline Fisher, had made a will in September 2020 nominating her friend Kerry Tolley as executor.

The Court heard Fisher drove down to Cornwall in the early part of 2022, entered the sea, and did not return. Tolley therefore applied for a presumption of death – supported by Fisher’s two cousins, her only living close relatives – to allow the administration of her estate.

His Honour Justice Matthews was satisfied that Fisher was deceased given the evidence regarding the events in Cornwall. This left the issue of Tolley’s ability to apply for a presumption of death given she did not fall into any of the categories listed in s1(5) of the Act.

The question was therefore posed as to whether an unproven named executor had the necessary standing. An unproved will, Matthews J said, “is simply an unproved piece of paper naming the claimant as an executor”, adding: “Ultimately, it may not turn out to entitle the claimant to administer the estate.”

However, referring to the rules of intestacy under the Administration of Estates Act 1925, Matthews J said:

“It seems counter-intuitive to say that an applicant for the latter has a sufficient interest in obtaining a declaration of presumption of death, and yet the applicant for a grant of probate has not.

It certainly would not make any sense to hold that a putative executor could not apply, though a putative administrator could do so and obtain a presumption declaration, so that then the putative executor, on the back of that, could apply for and obtain probate.”

It was therefore held that a person seeking to apply for a declaration has standing to do so despite a will being unproven. This, however, is not the end of the matter, pointed out Matthews J:

“An applicant for a presumption declaration cannot obtain any rights (whether personal or fiduciary for others) in relation to the missing person’s estate merely by obtaining the declaration.

There must still be a successful probate application, in which the testamentary paper may be challenged if appropriate. So there should be no risk to the estate in allowing the application to be made.”

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