Presumption of Death
Written by: K. RAJEEV REDDY
Introduction
Presumption of death means the assumption of death of a person who unexpectedly disappeared and was continuously absent for an extended period, especially seven years. The presumption of death belongs to the class of rebuttable, as distinguished from conclusive, legal presumptions. Presumptions of the rebuttable kind are certain assumptions or legal rules defining the amount of evidence required to support a particular allegation. With respect to rebuttable presumptions, unless they are explained away or rebutted by evidence to the contrary, they are conclusive evidence.
What are the kinds of presumed death?
1. Ordinary presumption-ordinary absence; absentee disappears under normal conditions without danger or idea of death.
2. Extraordinary presumption-qualified absence; disappearance with a great probability of death.
What are the rules in the ordinary presumption of death?
In case of:
1. Disappearance upon or before reaching the age of seventy-five (75) years:
a. After an absence of seven (7) years?
The absentee is presumed dead for all purposes except, succession.
b. After an absence of ten (10) years?
The absentee is presumed dead for all purposes including succession.
2. Disappearance at the age of seventy-six (76) years or older: a. After an absence of five (5) years?
The absentee is presumed dead for all purposes including succession.
When is the absentee presumed to have died under an ordinary presumption?
At the end of the five, seven- or ten-year period as the case may be.
Who is presumed dead for all purposes including the division of the estate among heirs in case of extraordinary presumption of death?
1. Person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four (4) years since the loss of the vessel or aeroplane;
2. Person in the Armed forces who have taken part in the war, and has been missing for four (4) years;
3. Person who has been in danger of death under other circumstances and his existence has not been known for four (4) years
LEGALITIES IN OTHER COUNTRIES (England, Ireland, Scotland, Australia, and U.S.A.)
The precise origin of this rule in the western world is difficult to predict. It appears that the necessity for this rule was felt for the first time, when sailors who went on long voyages on the seas, returned home after several years, only to find their wives remarried to other men. This led to complaints of bigamy. Therefore, this rule was first set out in the statutory form in Section 1 of the (English) Bigamy Act of 1603, which provided a defence to a charge of bigamy if either of those who were charged, marry a second time when the first spouse had been beyond the seas for seven years or those whose spouse had been absent for seven years although not beyond the seas.
This seven-year rule under the English Bigamy Act of 1603 was later incorporated in the English Cestui Que Vie Act, 1666. It was later adopted in the Life Estates Act, 1695 by the Irish Parliament.
As could be seen from the history of this Rule in England and Ireland, the rule was primarily intended to address questions relating to family life and properties of sailors, who are not heard of for a continuous period of time.
In Australia, there is no generally applicable legislation for missing persons, but the Courts apply the common law presumption of death. In a leading decision in Axon v. Axon (1937 (59) CLLAW 395) the High Court of Australia held if, at the time when the issue of whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or to have learned of his whereabouts, were he living, then in the absence of evidence to the contrary, it should be found that he was dead.
Scotland enacted its own law under the title Presumption of Death (Scotland) Act, 1977 which provides for a declaration of presumed death, if a person who is missing has not been known to be alive for a period of at least seven years. In Ireland, a law was enacted under the Presumption of Death (Ireland) Act, 2009 almost on similar lines as in Scotland.
In England, the Presumption of Death Act, 2013 was passed providing under Section 2 that when an application is made, the Court must make a declaration of death, if it is satisfied that a missing person has died or has not been known to be alive for a period of at least 7 years. Interestingly under Section 2(2) of the Presumption of Death Act, 2013 (England), the declaration issued by the Court should include a finding as to the date and time of the missing person’s death. Section 2 of the English Act could be usefully extracted as follows:
Section 2 of the Presumption of Death Act, 2013 (England):
Making declaration;
(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person
(a) has died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) It must include in the declaration a finding as to the date and time of the missing person’s death.
(3) Where the court
(a) is satisfied that the missing person has died, but
(b) is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.
(4) Where the court
(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but
(b) is not satisfied that the missing person has died, the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.
In the U.S.A., Code deals with the rule relating to the presumption of death. It reads as follows: U.S. Code S. 108: Seven-year absence- the presumption of death.
(a) No State law providing for the presumption of death shall be applicable to claims for benefits under laws administered by the Secretary.
(b) If evidence satisfactory to the Secretary is submitted establishing the continued and unexplained absence of any individual from that individuals’ home and family for seven or more years, and establishing that after diligent search no evidence of that individual’s existence after the date of disappearance has been found or received, the death of such individual as of the date of the expiration of such period shall be considered as sufficiently proved.
Thus, it is clear that both in England and elsewhere, the date of expiry of 7 years from the time a person went missing, is taken to be the date of death also, unless any other date is proved by the party asserting, to be the date of death. But the moment a party is able to prove a particular date as the date of death, then the question of presumption itself would not arise.
The decisions of various Courts holding that in certain circumstances a person must be presumed to be dead from the date he went missing or within a few days thereafter are based upon a flawed logic. The Evidence Act allows only one presumption. But by holding that a person must be presumed to be dead from the time he went missing, some Courts have raised a second presumption, which is not traceable to the Evidence Act. A distinction exists between a presumed fact and an inferred one. Many times, the confusion occurs due to the use of the presumption as a synonym for inference.
As we have pointed out earlier, there is a distinction between a presumption of fact and an inference. Section 108 of the Evidence Act admits of only one presumption namely the presumption of death of a person not heard of for 7 years by those who would normally have heard of him.
Since it is a rebuttable presumption and the rebuttal can take place at any time, the law does not stipulate any date as the date on which a person may be presumed to be dead. There is a huge difference between the presumption as to death and the presumption as to the date of death. Since the law does not prescribe any presumption as to the date of death, the same may have to be proved. An inference cannot take the place of proof or presumption.
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