A lovely client of mine came to me for advice a few weeks ago about what happens to the share of her father’s estate which has been left to her brother. This is because her brother has sadly been missing for years.
As a result, her family has not been able to distribute their inheritance from their late father’s estate and even more importantly cannot support the family he has left behind.
The Guardianship (Missing Persons) Act 2017
The Guardianship (Missing Persons) Act 2017 received royal assent this April and is a new legal mechanism to deal with the property and financial affairs of a person that has been declared missing.
The law will be very welcome for executors, administrators and family members who may have deal with this issue.
Under the Presumption of Death Act 2013, the courts can already make a declaration that a person who is thought to have died, or has not been known to be alive for a period of at least 7 years, is presumed to be dead.
This was the procedure used by the famous Bingham family to make achieve the declaration that the famous Lord Lucan is dead.
Who is permitted to deal with the estate of a missing person presumed dead?
Intermeddling with or distributing the estate of a missing person without authority to do so is unlawful.
The Guardianship (Missing Persons) Act 2017 now introduces a procedure to obtain an appointment as the guardian to deal with the missing person’s assets under a regime that supervises and regulates the way a guardian exercising their powers and carries out their duties. The case of Greathead V Greathead 2017 outlines how the procedure will work.
A specific application under this rule can now be made to the court to help manage the assets of a missing person which may otherwise continue to dissipate through existing arrangements that cannot be cancelled i.e. direct debits or even lost as a result of lack of management i.e. non-payment of mortgage demands etc.
The substantive provisions are still being worked out but an appointment under this Act will allow the guardian carry out duties necessary to manage the affairs of the missing person – to sell, let, mortgage/ otherwise dispose of the missing person’s property; execute document; recovering monies owed to the missing person; discharging their debts; progressing their business etc.
The Act should come into force within the next 12 months.