April 10, 2023

Doing the work of an estate trustee can be demanding and thankless. It usually involves endless paperwork and multiple visits to the bank. However, the job is made much more difficult when it is unclear whether the deceased is, in fact, dead.

While it may seem obvious, death is usually confirmed by examining a body. If there is no body, there is no examination and no death certificate. A death certificate is the one required document to begin the administration of any estate. Without it, the next of kin cannot file a claim for life insurance, sell the deceased’s assets, or make distributions to beneficiaries.

Unfortunately, there are times where someone disappears and no body is recovered. The Declarations of Death Act, 2002, SO 2002, C 14 offers family members a way out of the resulting limbo. In those cases, an “interested person” (most often a spouse, next of kin, or insurer) can apply to a judge for a declaration that the missing individual has died.

It is important to note that where a missing person is declared dead and their assets distributed, there is no undoing the transfers if the person turns up alive. Sub-section 6(1) of the Declarations of Death Act reads, in part: “the distribution [of the missing person’s estate] is final even if the individual is afterwards discovered to be alive, and the individual is not entitled to recover the distributed property.” For this reason, the law imposes a relatively high bar before a judge will issue a declaration that a missing person is dead.

Sub-sections 2(4) and 2(5) of the act set out the two main circumstances in which a court will declare that a missing person is dead: where the person has disappeared in circumstances of peril, or where the person has been absent for at least seven years. In either case, the application must also show:

(i) the applicant has not heard of or from the individual since the disappearance;

(ii) to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;

(iii) the applicant has no reason to believe that the individual is alive; and

(iv) there is sufficient evidence to find that the individual is dead.

In Grange v The Canada Life Assurance Company, 2021 ONSC 7551, the Ontario Superior Court was asked to make a declaration that William Grange was dead. In that case, William and his wife went on vacation to Bermuda in May 2014. William told his wife he was going for a short walk after dinner, but never returned. William’s wife alerted the Bermuda police and an island-wide search was commenced. Although the search lasted over a month, William was never found or heard from again.

Without a body, William’s wife could not obtain a death certificate. Without proof of death, she was unable to administer her husband’s estate or establish her entitlement to her husband’s life insurance benefits. Seven years after William’s disappearance, William’s wife brought an application asking the court to declare that William had died in October 2021 (the date of her application).

The judge carefully reviewed the evidence provided by William’s wife. The court held that there was no apparent motive for William to disappear: William had no significant debts, enemies, or vices. William was retired from a 28 year practice as a lawyer and had a close relationship with his wife and two adult sons. He had left his passport and bank cards in his hotel room when he disappeared and no attempt had been made to access his accounts or other assets since that time.

Furthermore, William was suffering from early stages of cognitive decline and muscle weakness. Before taking this vacation, William had wandered off from his house once before and the police had to be called to help locate him. When he disappeared in May 2014, the Bermuda police conducted an immediate and extensive land and marine search. Unfortunately, no evidence of William could be found.

The court held that William’s wife had met all the elements of the test set out in s. 2(5) of the Declarations of Death Act, 2002. Accordingly, the judge issued a judgment declaring William dead and directing the insurance company to pay out the benefits of William’s life insurance policy to her as the designated beneficiary.

You can read more about the Declarations of Death Act and the circumstances in which these types of orders are made in a previous blog here.