Bayes- Walker & Anor v Bayes- Walker & Ors

English law recognises a rebuttable presumption of death after seven years’ unexplained absence where people likely to have heard from the missing person have not done so. The presumption arises only after due enquiries suitable to the circumstances have been made.

The court should not ordinarily make a general declaration that a person is dead or presumed dead for all purposes. It may instead make orders, or grant a declaration, on the footing that the person is presumed dead for defined purposes and as between identified parties.

The claimants sought relief concerning a missing person who had disappeared in September 2002. Evidence was given by close family members, friends and other persons likely to have heard from him. Enquiries had been made through the RAF, the Ministry of Defence, British Forces Cyprus, diplomatic organisations and family contacts. Notice of the proceedings was also advertised in the Jerusalem Post, without response.

The central issues were whether due enquiries suitable to the circumstances had been made and whether the court should treat the missing person as presumed dead for the purposes of life-policy rights and investment units.

1. There is a rebuttable presumption of death after seven years where persons likely to have heard from the missing person have not in fact heard from him. The presumption also requires that all due enquiries suitable to the circumstances have been made.

2. The evidence established that the missing person had not been heard from since September 2002. Enquiries had been made of his former wife, parents, sons, friends, aunt, the RAF, British Forces Cyprus, the Ministry of Defence, the British Embassy in Cairo, the Egyptian Embassy and the Israeli Embassy. The RAF had confirmed in March 2010 that it had received no official contact from him. Advertisement of the proceedings in the Jerusalem Post produced no response.

3. In those circumstances, due enquiries suitable to the case had been made and the missing person was to be presumed dead for the defined purposes in issue.

4. A general declaration having effect for all purposes that a person is dead, or is to be presumed dead, was inappropriate. The court could, however, make orders on the footing that the person was dead. The court therefore granted a declaration limited to the rights between the claimants and the former wife, on the one hand, and the second and third defendants, on the other, and limited to the relevant policy and investment units.