Presumption of death — new Court guidance for will executors and ‘sufficient interest’

14 June 2023

3 min read

Brabners Personal, Private Client & Estate Planning, Family Law, Will & Inheritance Disputes

Presumption of death new Court guidance for will executors and sufficient interest

A recent ‘threshold’ case involving the executor of a missing person’s will has significant implications for others seeking similar court declarations and the test of ‘sufficient interest’.

Here, we examine the outcome of Kerry Tolley v No Defendant (Re Caroline Fisher) and its impact on the administration of estates.

Unproven death — legislation and complications

The executor of a will making a personal application for a grant (i.e., not through a solicitor) needs to provide a death certificate or obtain permission to swear an oath as to the death of the person to whom the grant application relates. In effect, the executor must prove the death and prove the will.

Difficulties arise if there is no evidence of death — for instance, if someone goes missing. In such circumstances, an application for a declaration of presumed death must be made under section 2 of the Presumption of Death Act 2013 (‘the Act’).

Under the Act, any person may make such an application, but Court must refuse it if the applicant is not a sufficiently close relative (i.e., a spouse, civil partner, parent, child or sibling) or doesn’t have ‘sufficient interest’ in the outcome of the application.

In the case of Kerry Tolley v No Defendant (Re Caroline Fisher), the Court considered whether the executor of an unproven will had ‘sufficient interest’ while not being a close relative of the person presumed to have died.

Grant of probate

Caroline Fisher had made a Will in 2020 which appointed her close friend Kerry Tolley as the sole executor of her estate. Miss Fisher went missing in January 2022. Her parents were both deceased and she had no siblings.

In order to make an application for a Grant of Probate, Ms Tolley had to prove that Miss Fisher had died. This required a declaration of presumed death. The somewhat circular issue was whether Ms Tolley had sufficient interest as an executor of an unproven will to make the application for the declaration of presumed death, as death needed to be proven for the will to be proven.

“A threshold question”

The Judge considered this case to be a threshold question and also found there to be an unnecessary contrast between an executor applying personally (having been named in the will) and an administrator applying for a Grant of Letters of Administration (where there is no will).

The Judge noted that Ms Tolley would not be able to apply for probate without a declaration of presumption of death, but an administrator (who could merely be a creditor of the estate) could have sufficient interest.

The Judge highlighted that obtaining a declaration of presumed death was only the first step in this process. Since the applicant would still need to prove the will, they would not automatically obtain any further rights to deal with the deceased’s estate. The formal processes regarding the grant application would still need to be followed.

Sufficient interest

The Judge found that a person wishing to prove a will does have sufficient interest under section 1(5) of the Act, even though a will has not yet been proved.

In dealing with the sad circumstances surrounding Miss Fisher’s death, the Court took a sensible and proactive approach to allow her executor to progress the administration of the estate.

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