The Process in BC for Declaring a Missing Person Legally Dead
For the family members of a missing person, there may come a time when it is reasonable to infer the person is deceased. In such a situation, these family members may need to obtain a legal declaration of death for the person in order to deal with the various legal issues that arise upon this presumption of death.
As a recent summer student at the British Columbia Coroners Service, I witnessed death in many forms. These deaths were invariably tragic and painful for the family of the deceased person but—although they may not have realized it—the relatives of these deceased persons were fortunate in that they had a dead body. The existence of a dead body is incontrovertible proof that a death has occurred. The Coroners Service will duly and promptly issue a declaration of death for a deceased person when his or her body is observable and identifiable, thereby enabling the family of the decedent to address the legal issues that may have arisen upon his or her death.
In most missing-persons cases, even though the person may have been missing for years, there is insufficient evidence of death to satisfy the Coroners Service’s criteria for issuing a legal declaration of death. There isn’t a dead body, and quite often the missing person disappeared without leaving any indication of what might have happened to him or her.
Fortunately, the Survivorship and Presumption of Death Act provides the family members of a missing person with an alternative method of obtaining a legal declaration of death for the person. Under the Survivorship and Presumption of Death Act, a family member (or other interested party) may apply to the Supreme Court of British Columbia for an order declaring the missing person “presumed dead.” Before the court will make such an order, it must be satisfied that:
- the missing person has not been seen by the applicant or any other person since he or she went missing;
- the applicant has no reason to believe the missing person is alive; and
- there is some evidence from which it can be reasonably inferred that the missing person is dead.
An application for a legal declaration of death for a missing person should include from the family member detailed affidavit evidence as to the circumstances surrounding the person’s disappearance, such as whether anything unusual happened around the time of the disappearance, as well as details of any related reports filed with the police and of any attempts made to find the person (Dersch v. Dersch). A strong application will usually also be corroborated by an affidavit from the police to support the inference that the person is deceased. An application may fail if the police provide an alternative explanation for what might have
happened to the person, even if they also agree that the person may be dead (Re Cyr).
Applying to the Supreme Court of British Columbia for relief of any kind is a highly technical process. Applications for an order declaring a missing person “presumed dead” can easily fail if procedure is not followed carefully. If you have reason to apply to the court for such an order, you should speak with a lawyer to help guide you through the process and, importantly, to help you determine whether the evidence of the missing person’s death is such that your application would stand a reasonable chance of success.
Carl May, BComm, JD