Austin v Mitchell & Anor

Under the Presumption of Death Act 2013, a declaration may be made where the court is satisfied on the balance of probabilities that a missing person has died. The court may rely on circumstantial evidence and must determine the date and time of death. Where the precise time cannot be established, the presumed death occurs at the end of the period during which death is found to have occurred.

For domicile, the ordinary rules apply. A child’s domicile may derive from the mother where the statutory conditions are met, and an acquired domicile is not displaced merely by temporary travel abroad. On a declaration of presumed death, the court may determine property interests arising from the declaration. A beneficial joint tenancy passes by survivorship unless displaced by contrary evidence.

Denise Mary Austin brought a Part 8 claim under the Presumption of Death Act 2013 concerning her son, Karoly John Horvath, known as Charles, who had last been known to be alive in British Columbia on 26 May 1989.

She sought a declaration that Charles was presumed to have died and a declaration concerning a property in Halifax which she and Charles held jointly. Charles’s daughter and half-brother were served and confirmed that they did not oppose the claim. The central issues were Charles’s domicile, whether the evidence established his death, the appropriate presumed date and time of death, and the resulting beneficial ownership of the property.

1. Presumed death. The claim was granted. The court applied the balance of probabilities standard and was entitled to draw conclusions from circumstantial evidence. The regular communications between Charles and his mother, his plans to meet her, the last confirmed sighting, his possession of cash, the cessation of employment enquiries, the evidence concerning his belongings, and the anonymous reports together established that he had died.
2. Domicile. Charles was domiciled in England and Wales when last known to be alive. His domicile of origin was initially determined by his father’s domicile. Following his parents’ separation, he lived permanently with his mother in England. The Domicile and Matrimonial Proceedings Act 1973 revived his mother’s English domicile and gave Charles a dependent domicile while he was a child. His domicile remained England after he became capable of acquiring an independent domicile because there was no evidence that temporary travel or residence abroad involved an intention to settle permanently elsewhere.
3. Date and time. The court found that Charles died during the period from the evening of 26 May to noon on 27 May 1989, British Columbia time. As the precise time was unknown, section 2(3) required the presumed death to be fixed at the end of that period. The declaration therefore recorded death at 12.01 pm on 27 May 1989.
4. Advertisement and procedural safeguards. The notices published in British Columbia and Halifax satisfied the statutory and procedural requirements. Advertising serves both to obtain information about the missing person and to give interested persons an opportunity to intervene.
5. Property. Austin and Charles were joint tenants in law and equity. There was no evidence rebutting that conclusion. On Charles’s death, his beneficial interest passed automatically to Austin by survivorship, so she held the entire legal and beneficial interest in the property.

First-instance decision. No earlier decision forming part of an appeal was stated in the judgment.