Kerry Tolley v No Defendant

Under section 1 of the Presumption of Death Act 2013, a person outside the specified family relationships may apply for a declaration of presumed death if they have a sufficient interest in its determination. The question is context-sensitive and must be decided on a case-by-case basis.

A person who intends to prove a testamentary document has a sufficient interest, even before probate has been obtained. The need to establish death for probate, the applicant’s prospective fiduciary responsibilities, and the interests of those entitled to the estate together justify standing.

The claimant applied under CPR Part 8 for a declaration that Caroline Fay Fisher was presumed dead under the Presumption of Death Act 2013. The evidence established that Fisher had driven into the sea in Cornwall and had not been heard of since.

The claimant was a long-standing friend and named executor under an unproved will. She was not Fisher’s spouse, civil partner, parent, child or sibling. The central issue was whether she nevertheless had a sufficient interest under section 1(5)(a) so that the court could hear the application.

1. The court granted the declaration of presumed death and held that the claimant had standing to apply.
2. Section 1 of the Presumption of Death Act 2013 creates a threshold requirement. Applicants within the specified family relationships need not demonstrate sufficient interest. Other applicants must do so.
3. The phrase sufficient interest is undefined and must be construed in the statutory context. The approach to standing in section 31(3) of the Senior Courts Act 1981 could not simply be transferred because judicial review and presumption-of-death proceedings serve different purposes.
4. Relevant interests may include emotional interests, financial dependency, interests in succession, and public interests connected with registration, taxation and social security. The court did not decide the sufficiency of every possible interest.
5. A putative executor has a sufficient interest where the executor intends to prove a testamentary paper but cannot establish an exact date of death. Probate cannot safely proceed until death is established, whether through a presumption declaration or the procedure for giving evidence of death under rule 53 of the Non-Contentious Probate Rules 1987.
6. The fact that the will is unproved does not defeat standing. The applicant may ultimately fail to establish the will’s validity or that it is the last will, but the declaration itself confers no right to administer the estate. Probate remains subject to challenge.
7. The distinction between a presumption declaration and leave to give evidence of death was material. The former involves a judicial conclusion, on the balance of probabilities, that the missing person has died or has not been known to be alive for seven years. The latter does not itself require the court to conclude that death has occurred.
8. The claimant’s prospective fiduciary duties to creditors and beneficiaries, and the utility of establishing death for the administration of the estate, reinforced the conclusion that she had sufficient interest.