Declared death in absentia
||The examples and perspective in this article deal primarily with Western culture and do not represent a worldwide view of the subject. (November 2013)|
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A person may be legally declared dead (declared death in absentia or legal presumption of death) despite the absence of direct proof of the person's death, such as the finding of remains (e.g., a corpse or skeleton) attributable to that person. Such a declaration is typically made when a person has been missing for an extended period of time and in the absence of any evidence that the person is still alive, or when the circumstances surrounding a person's disappearance overwhelmingly support the belief that the person has died (e.g., an airplane crash). A declaration that a person is dead resembles other forms of "preventive adjudication", such as the declaratory judgment. Different jurisdictions have different legal standards for obtaining such a declaration and in some jurisdictions a legal presumption of death may arise after a person has been missing under certain circumstances and a certain amount of time.
Facts, circumstances, and the "balance of probabilities"
In most common law and civil code jurisdictions, it is usually necessary to obtain a court order directing the registrar to issue a death certificate in the absence of a physician's certification that an identified individual has died. However, if there is circumstantial evidence that would lead a reasonable person to believe that the individual is deceased on the balance of probabilities, jurisdictions may agree to issue death certificates without any such order. For example, passengers and crew of the Titanic who were not rescued by the RMS Carpathia were declared legally dead soon after Carpathia arrived at New York City. More recently, death certificates for those who perished in the September 11, 2001 attacks were issued by the State of New York within days of the tragedy. The same is usually true of soldiers missing after a major battle, especially if the enemy keeps an accurate record of its prisoners of war.
If there is not sufficient evidence that death has taken place, it may take somewhat longer, as simple absence does not necessarily prove death. The requirements for declaring an individual legally dead may vary depending on numerous details including the following:
- The jurisdiction the individual lived in before death
- The jurisdiction where they are presumed to have died
- How the individual is thought to have died (murder, suicide, accident, etc.)
- The balance of probabilities that make it more likely than not that the individual is dead
Most countries have a set period of time (seven years in many common law jurisdictions) after which an individual is presumed to be dead if there is no evidence to the contrary. However, if the missing individual is the owner of a significant estate, the court may delay ordering a death certificate to be issued if there has been no real effort to locate the missing person. If the death is thought to have taken place in international waters or in a location without a centralized and reliable police force and/or vital statistics registration system, other laws may be in effect.
England and Wales
Currently, a person is generally taken to be dead if, after seven years, (a) there has been no evidence of their continued existence; (b) the people most likely to have heard from them have not had any contact; and (c) inquiries have been made of that person, without success. This is a rebuttable presumption at common law - that is, should the person subsequently appear, they are no longer taken to be dead.
Otherwise, courts may grant leave to applicants to swear that a person is dead (within or after the seven year period) - for example an executor may make such an application in order to be granted probate for the will. This kind of application would only be made sooner than seven years where death is probable, but not definitive (such as an unrecovered plane crash at sea), following an inquest (see below). Such an application is specific to the court in which it is made - thus separate applications must be made at a Coroner's Inquest, for proceedings under the Matrimonial Causes and Civil Partnership Acts (for remarriage), for Probate and under the Social Security Act.
These processes were not considered satisfactory, and so in February - March 2013, a Presumption of Death Act was passed to simplify this process. The Act is currently due for publication. The new act will allow an application to be made to the UK High Court to declare a person dead. This declaration is conclusive and cannot be appealed. It will be recorded on a new Register of Presumed Deaths, and will have the same effect as a registration of death. Death is taken to occur on (a) the last day that they could have been alive (if the court is satisfied that they are dead), or (b) the day seven years after the date they were last seen (if death is presumed by the elapse of time).
In England and Wales, if it is believed that there should be an inquest, the local coroner will file a report; this may be done to help a family receive a death certificate that will bring some closure. This will bring any suspicious circumstances into light. The coroner will then apply to the Secretary of State for Justice under the Coroners Act 1988 section 15, for an inquest with no body. The seven years rule will only apply in the High Court of Justice on the settlement of an estate. According to a spokesman for the Ministry of Justice, the number of requests received each year is fewer than 10 but very few of these are refused. Without a body an inquest relies mostly on evidence provided by the police, and whether the senior officers believe the missing person is dead.
The incidence of presumed death in the England and Wales is considered low - in September 2011, it was estimated that only 1% of the 200,000 missing persons each year remained unaccounted for after 12 months, with a cumulative total of 5,500 missing persons by September 2011.
It takes 20 years in Italy to declare a missing person dead. After 10 years from somebody's disappearance, a motion to declare the person legally dead can be filed in a court of law. After that, another 10 years must pass to be eventually declared legally dead.
The law calls people who disappear "missing" or "absent". There are several criteria for declaring someone dead by assumption: a) a person's being missing from his/her home or usual residence for seven years (the period varies from state to state), b) such absences being continuous and without explanation, c) such absences being accompanied by a lack of long-distance communication with those persons most likely to hear from him/her, and d) diligent but unsuccessful search for that person and inquiry into his/her whereabouts. Professor Jeanne Carriere, author of “The Rights of the Living Dead: Absent Persons in Civil Law” (published in the Louisiana Law Review), stated that as of 1990, the number of such cases in the United States was estimated to be between 60,000 and 100,000.
Often the missing person's bank accounts will be checked for activity and possible sightings will be investigated.
According to Edgar Sentell, a retired senior vice-president and general counsel of Southern Farm Bureau Life Insurance Company, almost all the states recognize the presumption of death, by statute or judicial recognition of the common law rule. Some states have amended their statutes to reduce the seven-year period to five consecutive years missing, and some, such as Minnesota and Georgia, have reduced the period to four years.
If someone disappears, those interested can file a petition to have them declared legally dead. They will have to prove by the criteria above that the person is in fact dead. There are constitutional limitations to these procedures: The presumption must arise only after a reasonable amount of time has elapsed. The absent person must be notified; courts permit claimants to be notified by publication. “Adequate safeguards concerning property” provisions must be made in the case that an absent person will show up. There are some states that require those who receive assets of the missing person's to return them if the person turned out to be alive. If a person is declared dead, when missing, their estate will be distributed as if they were deceased. In some cases, the presumption of death can sometimes be rebutted, according to Sentell, courts will consider evidence that the absent person was a fugitive from justice, had money troubles, had a bad relationship, or had no family ties or connection to a community as reasons not to presume death.
A person can be declared legally dead after they are exposed to "imminent peril" and fail to return, like a plane crash, as portrayed in the movie Cast Away. In these cases courts will generally assume the person was killed even though the usual waiting time for someone to be declared dead has not elapsed yet. Sentell also says, “The element of peril accelerates the presumption of death.” This rule was enacted after the attack on the World Trade Center, so that death certificates could be established. Although people who are presumed dead sometimes turn up alive, it is not as common as it used to be. There has been one recent notable case where this has occurred, such as in the case of John Burney who disappeared after financial problems and reappeared years after, December 1982, to Arkansas. His company and wife had already received the death benefits; so, upon returning, the life insurance company filed a suit against him, his wife, and his company. In the end, Burney's actions were ruled fraudulent in court, leading to a $470,000 judgement.
Missing persons have on rare occasions been found after being declared legally dead. Prisoners of war, people with mental illnesses who become homeless, and in extremely rare circumstances kidnapping victims may be located years after their disappearance. Some people have even faked their deaths to avoid paying taxes, debts, etc.
- Henry Hudson, English explorer, left adrift after a mutiny in 1611.
- Ambrose Bierce, publisher, author, disappeared during the Mexican Revolution in 1913.
- Joseph Force Crater, New York City judge, disappeared on the way to a play in 1930.
- Amelia Earhart, pioneer, aviator, disappeared while flying in 1937.
- Ettore Majorana, Italian Physicist, disappeared at sea in 1938.
- Richard Halliburton, author and voyager, Pacific Ocean, lost at sea in 1939.
- Glenn Miller, jazz musician/bandleader, whose plane disappeared over the English Channel in 1944.
- Subhas Chandra Bose, Indian freedom fighter, disappeared in a possibly staged plane crash in 1945.
- Michael Rockefeller, anthropologist, New Guinea, disappeared while canoeing in 1961.
- Joe Gaetjens, footballer, kidnapped by Papa Doc's secret police in 1964.
- Harold Holt, Prime Minister of Australia, presumed to have drowned in 1967.
- Sean Flynn and Dana Stone, photojournalist, American, On April 6, 1970, Flynn and Dana Stone disappeared while on assignment in Cambodia. Their remains have never been found. The current consensus is that they were held captive for over a year before they were killed by Khmer Rouge in June 1971.
- Hale Boggs and Nick Begich, American politicians, whose airplane disappeared in Alaska in 1972.
- Roberto Clemente, Puerto Rican baseball player who disappeared after a plane crash off Luis Munoz Marin International Airport on December 31, 1972. His body was never found.
- Richard Bingham, 7th Earl of Lucan, disappeared in 1974 after his nanny was murdered.
- Jimmy Hoffa, trade union leader, disappeared in 1975.
- John Brisker, basketball player, disappeared in Uganda in 1978.
- Frederick Valentich, Australian aviator, last heard supposedly describing a UFO over radio while flying a light plane in 1978. No wreckage or body was found.
- Etan Patz, abducted while on his way to a school bus stop in Lower Manhattan in 1979; declared dead in 2001. In May 2012, a man named Pedro Hernandez was charged with Etan Patz's murder based on a confession to police, despite a lack of physical evidence.
- Ian Mackintosh, British novelist (Warship, The Sandbaggers, Wilde Alliance), was presumed dead in July 1979 after the plane he was flying disappeared over the Gulf of Alaska. No wreckage was found and none of the plane's passengers were heard of again.
- David A. Johnston, volcanologist. His body has never been found since the eruption of Mount St. Helens in 1980.
- Ronald Jorgensen, convicted killer, disappeared in 1984, likely faked his own death.
- Federico Caffè, Italian economist, disappeared in 1986.
- Teddy Wang, entrepreneur, Hong Kong, kidnapped in 1990.
- Richey Edwards, guitarist/lyricist, Manic Street Preachers, disappeared in 1995.
- Scott Smith, bass player for Loverboy, lost at sea in 2000.
- Sneha Anne Philip, a New York City physician last seen on the night before the September 11, 2001, terrorist attacks, in which she was later ruled to have died.
- Bison Dele, American NBA basketball player missing from Tahiti in 2002; believed to have been murdered by his brother at sea.
- Steve Fossett, aviation/sailing adventurer, died in a plane crash in 2007, declared dead before remains were found in 2008.
- Natalee Holloway went missing in Aruba on May 30, 2005, and was legally declared dead on January 12, 2012. No remains were found.
- Suzy Lamplugh, an estate agent, disappeared while showing a house to a Mr Kipper; her body has never been found.
- Oscar Acosta, lawyer and author, disappeared in Mexico in 1974. Friend of author Hunter S. Thompson.
- Guillaume Le Gentil, French Astronomer, wrongly declared dead in the 1760s after being lost at sea for 11 years. He actually died in 1792.
- Ishinosuke Uwano, former soldier of the Japanese Imperial Army, declared dead in 2000 yet presented himself as alive and living in Ukraine to the Japanese government in 2006.
- John Darwin, fraudster, faked his own death in 2007.
|Look up in absentia in Wiktionary, the free dictionary.|
- Bray, Samuel L. (2010). "Preventive Adjudication". University of Chicago Law Review 77: 1275.
- House of Commons Justice Committee, Presumption of Death, Twelfth Report of Session 2010–12 Report, 7 February 2012
- Presumption of Death Act 2013
- When is a missing person declared dead? BBC News, 5 December 2007
- "The rights of the living dead: absent persons in the civil law" Jeanne Carriere, 50 La. L. Rev. 901, 1990
- The missing insured and the life insurance death claim C. Edgar Sentell, FDCC Quarterly, Winter 2004
- What happens when someone "legally dead" shows up alive? The Straight Dope, 13 June 2006
- Young, Perry Deane; Two of the Missing: Remembering Sean Flynn & Dana Stone p. 271 (Press 53: 2009) ISBN 978-0-9816280-9-7
- Bass, Thomas A., The Spy Who Loved Us: The Vietnam War and Pham Xuan An's Dangerous Game p. 187, (PublicAffairs: 2009) ISBN 9781586484095 Accessed Via Google Books June 21, 2009
- Page, Tim, Derailed in Uncle Ho's Victory Garden: Return to Vietnam and Cambodia p. 171 (Scribner: August 2, 1999) ISBN 0684860244 Accessed via Amazon's LOOK INSIDE feature June 21, 2009