The Legalities of a Missing Persons Case

Cases that involve missing persons are delicate matters of the law. On the one hand, a missing person is no longer present to represent themselves or the interests of their estate, while on the other hand there is no physical evidence of their passing.

Statistics of Missing Persons In Canada

Of these cases, 85% of missing adult cases are removed within a week, but an unlucky few are never solved. In these cases, the family must contend with the realities of handling property that belongs to the missing person. It can be painful to some, and cathartic to others. Whatever the case, a missing person’s legal rights must be handled with sensitivity and flexibility.

When Presumption of Death Is Appropriate

There is common law presumption that a person who has been missing and not heard from for 7 years can be declared presumed dead in the eyes of the law. Prior to the 7 years, an interested person may apply to the Supreme Court of British Columbia for a person to be declared deceased. The actual wording for the law regarding a presumption of death is:

3  (1) If, on the application of an interested person under the Supreme Court Civil Rules, the court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,

(b) the applicant has no reason to believe that the person is living, and

(c) reasonable grounds exist for supposing that the person is dead,

the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.

(2) An order made under subsection (1) must state the date on which the person is presumed to have died.

When a family member goes missing without any evidence of their death, the hope will always remain for that person’s well-being. In the meantime, their family may need to handle serious matters of the person’s estate.

When a family member passes away, the issuance of a death certificate by the Vital Statistics office allows the family to conduct the appropriate transitions under the law in an efficient manner. Under the Presumption of Death Act, (RSBC 1996, c 444) – the family can apply for the presumption of death in specified cases.

This may allow a survivor to change the legal status of their spouse in order sell their home, while leaving untouched the status of the marriage itself. This is a far reaching portion of the law, showing the flexibility and compassion for families of missing persons who will never give up hope, while allowing them some closure in a logistical sense.

Thank you to Adam Basterfield, singer-songwriter, multi-instrumentalist and composer from Victoria, BC, for the use of his composition for our telephone system.
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