In estate litigation, “Declaration of Death” may not be a frequent topic, but when it arises, understanding the legal framework is crucial. After all, situations like this are not uncommon: an adult child would be thinking something like “Hmm, my mom has not been showingup for many years, so I want to get her house”.
Addressing such questions requires a clear grasp of Ontario’s Declarations of Death Act.
A declaration of death is a court order that presumes a missing person is legally deceased. This allows their family or estate representatives to manage their affairs, such as transferring property or administering the estate. Without such a declaration, legal obstacles can prevent the resolution of the missing person’s estate.
Under the Declarations of Death Act, 2002, there are two main scenarios where a declaration can be issued:
- Disappearance in Circumstances of Peril – If a person goes missing under life-threatening circumstances, such as during a natural disaster, a war, or an accident (e.g., a plane crash), the court can declare them dead if:
- They haven’t been heard from since the perilous event.
- Reasonable inquiries confirm no one else has heard from them.
- There’s no reason to believe they are alive.
- Sufficient evidence supports their presumed death.
- Seven-Year Absence – If the individual has been missing for seven years, the court can declare them legally dead, provided:
- They haven’t been heard from during this time.
- Reasonable efforts have been made to locate them, including contacting those who might know their whereabouts.
An application for a declaration of death must be supported by strong evidence, including:
- Statements from family, friends, or acquaintances confirming no contact.
- Evidence of thorough searches, such as police reports or investigator findings.
The court will specify the date of death in the declaration. This date can be either:
- When the individual likely died, based on evidence.
- The date the application was made.
The court may adjust the death date if it deems it fair and doesn’t harm anyone’s legal interests.
In Ontario, any interested person can apply for a declaration of death. This includes:
- Beneficiaries under the will.
- Named executors.
- Close family members, such as spouses, children, or parents.
In some cases, even creditors with a financial interest in the estate may qualify to apply.
Once a declaration of death is issued:
- The missing person’s estate can be administered as though they had passed away.
- Property can be transferred to beneficiaries or sold to settle debts.
- Outstanding legal and financial obligations can be resolved.
However, if the missing person reappears, the court retains the authority to revoke or amend the declaration.
The Absentees Act provides alternative measures when someone is missing but hasn’t been declared dead. For example, the court can appoint an administrator to manage the absentee’s property and financial obligations until they are found or declared deceased.
Additionally, courts remain cautious about granting declarations of death, recognizing that some individuals may disappear intentionally to avoid obligations or personal challenges.
While the declaration of death is not a central issue in estate litigation, it plays a vital role in resolving the affairs of missing persons. Whether due to tragic circumstances or prolonged absence, this legal process ensures families and estate representatives can move forward. If you find yourself dealing with such a situation, consult a lawyer to navigate the complexities and protect your interests.