'What if the deceased reappears after having been presumed dead?'– Platform Article, The Scotsman

By GORDON INNES

Head of litigation at the law firm Gillespie Macandrew

John Darwin disappeared in a canoeing accident in the North Sea five years ago. He was, at the time, presumed to have drowned at sea. Yesterday, he was remanded in custody, charged with deception. From time to time, people disappear in circumstances where their body is never found. Apart from the anxiety and grief such disappearances can cause, relatives may also be faced with a host of practical problems.

It is necessary to establish the death of a person for many reasons: for inheritance of property; for potential remarriage; for social security claims by the widowed spouse; and, as in Darwin's case, to establish entitlement to the proceeds of a life insurance policy. Normally, a death certificate is enough. However, without a body, no death certificate can be issued.

Scots Law has long recognised the need to establish that death has occurred. In 1891, an act was passed allowing the Court of Session to make a finding that a person who has disappeared had died at some specified date within seven years after the date he was last known to be alive. A high standard of proof was required. In 1977, parliament went one stage further with the Presumption of Death (Scotland) Act, ruling that a spouse, or other family member, could apply to the court to declare death has occurred if satisfied, on a balance of probabilities, that a person who is missing has either died or has not known to have been alive for a period of at least seven years.

Since then, the courts in Scotland can and do make findings that persons who have disappeared died on a specific date, often the date of disappearance itself. This leaves the family free to inherit or claim under insurance policies.

In times of war or natural disaster, the importance of this provision is self evident. The tsunami on Boxing Day, 2004, caused considerable hardship to the families of those who had been unable to obtain a death certificate from the Foreign Office. In effect, the financial assets of the missing person were frozen. In many overseas jurisdictions, there is no equivalent presumption of death and administering an estate can take much longer than seven years.

But what if the deceased reappears after having been presumed dead? An order of presumption of death can be revoked in the event of a missing person reappearing, whether or not they claim to have lost their memory. Where the disappearance has been genuinely caused by memory loss, it is possible the innocent recipients of the proceeds of an insurance policy could not be forced to return the money. However, where there has been fraud by the party making the claim under the policy, such as knowing the missing person was alive but has made themselves scarce to avoid paying debts, there is no doubt the spouse who made the claim and the missing spouse, assuming they were party to the deception, will be liable to repay in full.

They could also face charges of fraud. If the claim was made in the knowledge that the missing person was actually alive, then all the paddling in the world won't salvage the claimant's reputation.