Presumption of Death Order

Family dynamics differ from family to family. However, what happens when a family member takes an unceremonious and prolonged leave of absence and it is not certain to the remaining family whether such member is alive or deceased? What happens when such family cannot transact commercially because the missing member’s consent is required or where the family just requires closure to be able to deal with the missing person’s affairs? In this article, we look at how such affected family and or any interested person can approach the court for an order presuming the missing person to be deceased.

What is a presumption of death order?

A presumption of death order is an order of court which presumes someone to be deceased. It is obtained by bringing an ex parte application. An ex parte application is an application done with respect to or in the interests of one side only or of an interested outside party. Such order can only be obtained through the High Court as only the High Court by law is empowered to adjudicate over the status of persons (such as whether a person may be presumed deceased).

Such application is brought by any interested party such as the affected family and involves a 2 (two) pronged approach. In the first instance, it involves the handing down of a rule nisi order calling on any interested parties to show cause within a stated time why the order presuming the missing person deceased should not be made final. This order is then to be published in the Gazette and a local newspaper circulated in the area in which the person presumed deceased last resided.

In the second instance and once the publication has taken place, proof of such publication is then provided to the court when the application is set down once more to make the order presuming the missing person to be deceased is made final. Provided that no objection to the rule nisi is submitted, the order will then be made final. Such order can then be presented to the relevant authorities such as the Department of Home Affairs for the production of a death certificate.

Important information to furnish to the court prior to obtaining a presumption of death order.

Prior to approaching the court, it is important to document all the steps taken by the family/interested persons to try and locate the missing person. The court will not only have consideration to what the family/interested persons have done to locate the missing person but will also consider the amount of time that the missing person has been missing and any other relevant considerations such as the age of the missing person as at the date of instituting the application. The list is not exhaustive.

Steps taken by the family/interested person prior to instituting the application may include opening a missing person’s case with the South African Police Service, publishing a missing persons advert in the newspapers, appointing a tracer to locate the missing person etcetera. Here too, the list is not exhaustive. What is important is to show that the family/interested persons have done all they can to locate the missing person and that the only inference that can be drawn from the failed attempts is that the missing person is in all likelihoods deceased.

Should the order be granted and the missing person returns, another court application must be made to rescind the order presuming the person deceased. This aspect, however, is not discussed in this article.

Conclusion

In conclusion and to summarize, a missing person may be presumed deceased on application by a family member/interested party. It must be shown that the person cannot be located, despite concerted effort and that all considerations point to the likelihood that the missing person is deceased.

Please note that the above article has been authored for information purposes only and does not constitute legal advice. The reader is therefore advised to consult with an attorney where necessary.