The disappearance of a loved is an emotionally devastating experience that could result in the painful and complex process of proving their death.
Once it appears that a person may never be found, it could become necessary to obtain a declaration of death and then distribute their estate to those left behind.
It can be a difficult procedure, hindered by the obvious problem: if there’s no body, how do you know the person is dead?
People can go missing for many reasons not resulting from foul play: mental illness, incarceration or incapacitation abroad, going into hiding, or just an extended vacation.
Also, there are situation where it could be advantageous to be declared dead, including insurance fraud or evading creditors.
It’s hardly a common occurrence, but multiple Canadian families have had loved ones declared dead after a disappearance only to see that same person resurface years, sometimes decades later.
Each province has its own laws with criteria for when a person may be declared dead, although most acts are very similar.
Parties other than relatives can also apply to a court to have someone declared dead. This can include other “interested persons” such as:
- estate executors or trustees;
- life insurers or beneficiaries;
- attorneys for personal care.
The respective provincial acts generally ask an applicant to show the following:
- The person in question has not been heard from since a specific date;
- The applicant has no reason to believe the person is alive;
- There are reasonable grounds to assume the person is dead.
How long must a person be missing?
Every case is different, but the courts typically use a seven-year timeframe. This is largely done to deter insurance fraudsters or others who might be faking their death for illicit reasons.
However, the seven-year period doesn’t always apply. There can be other ways to argue a person must be reasonably dead.
For example, if a person boards a plane that later crashes into the ocean and they are never seen or heard from again, it is entirely reasonable to conclude they are dead even if their remains are never found.
After the 2013 train explosion in Lac-Mégantic, Que., several victims were declared dead within months even though they were never found. Since they were known to be in the vicinity of the blast and were subsequently never seen or heard from, it was logical to conclude they died in the tragedy.
Proof of disappearance could be difficult to obtain and may require affidavits from police and others. Consult the legislation in your area — usually called the Presumption of Death or Declaration of Death Act — and seek legal advice before taking your application to court.