Estate Planning

Missing and Presumed Dead?...or Just Absent?

By Hull & Hull LLP

The issue of when a missing person will be deemed to be deceased was most recently (and prominently) in the news during the search for Steve Fossett.  Notwithstanding the relatively short duration of time since his disappearance on September 3, 2007, circumstantial evidence suggested that, on a balance of probabilities, his death was a safe assumption and Fossett was declared legally dead on February 15 , 2008.

In Ontario, the Absentee Act deals with the situation in which a person is missing but about whom there is "no knowledge as to whether he or she is alive or dead."  In such a situation, the Court has the power to appoint a trust company or others to deal with that person's affairs in the interim.  Interestingly, the term "Committee" (which also used to be the title given to the person now appointed as a "Guardian" under the provisions of the Substitute Decisions Act) still is used for this purpose.

The Act provides that certain persons including the Absentee's spouse or (adult) child can make application to the court for a declaration of Absentee and the appointment of a Committee to manage such person's property. 

The question that inevitably arises in any such situation is:  what if the Absentee in fact shows up one day, alive and well, and wanting to know what has happened to his or her property?  Of course, such situations are rare but not unheard of.  In such a case, the Committee will have the obligations of a fiduciary to account for the Absentee's property.  The Committee will likely make a compelling argument that the Absentee's assets ought to be available to fund the costs of making the application and compensating the Committee for safeguarding the Absentee's assets.

David M. Smith

Full post as published by Toronto Estate Law Blog on May 20, 2008 (boomark / email).