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The stress of having a loved one go missing is insurmountable. The logistics of dealing with the administrative side during this uncertain and painful time only adds to the difficulties a family may be facing. However, in many ways, the law can be uncaring, and there is an expectation, at some point in time, it no longer makes sense for the estate of the missing person to remain in limbo. In these situations, a family may have to declare their loved one dead for the purpose of administering the estate.
In British Columbia, there are two separate processes to have a missing person declared dead. The process is dependent on the circumstances of the case.
The Coroners Act
The first option utilizes the Coroners Act. According to the Coroners Act and the British Columbia BC Coroner’s Service website, the BC Coroner’s Service can investigate a death without a body under limited circumstances. The event which caused the person to go missing must have been witnessed, at least 6 months must have passed since the event, and there must be no reasonable likelihood the missing person could have survived the event. The main drawback to this method is the process often takes a year or more depending on the situation.
The Survivorship and Presumption of Death Act (SPDA)
The second option utilizes the Survivorship and Presumption of Death Act. An interested party can file an application with the Supreme Court of British Columbia for an order declaring that a person is presumed dead for all purposes. However, much like the Coroners Act, certain criteria must be met. Section 3 of the SPDA outlines the conditions that must be met for a judge to issue that order.
(1) If, on the application of an interested person under the Supreme Court Civil Rules, the court is satisfied that
- (a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
- (b) the applicant has no reason to believe that the person is living, and
- (c) reasonable grounds exist for supposing that the person is dead, the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.
(2) An order made under subsection (1) must state the date on which the person is presumed to have died.
It is important to note that there is no minimum length of time a person must be missing before an application can be made, however the length of time may be a factor in the judge’s decision. The application should include a detailed affidavit as to the circumstances of the person’s disappearance. This should include whether anything unusual happened around the time of the disappearance, and any details of any report filed with the police and any attempts made to find the person (Dersch v Dersch, 1994 CanLII 1348 (BCSC)). It is useful to have an affidavit from the police to support the inference that a person is deceased, however the application may fail if police provide an alternative explanation for what may have happened to the person, even if the police agree the person may be dead (Re Cyr, 2006 BCSC 1523).
The team at LK Law is familiar with these nuanced issues in estate administration and litigation. If you are struggling with this type of situation, please reach out to any member of our Estate Planning and Litigation group.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.