Declaration of Death: Or how a Court can declare someone is dead

You’ve seen the news articles or heard the stories. Someone is missing and has not been seen in a long time. Or someone disappears in perilous circumstances. Other than the emotional heartache that comes with a disappearance and the unknown, there’s the legal headache of how to manage that person’s affairs when there is no Death Certificate. How do you apply for Probate? How do you get the insurance company to pay out life insurance? How can you conduct the missing person’s affairs?

These issues, thankfully, do not come up often. When they do, there is a process we can assist you with should you or someone you know find themselves in this dilemma. The Declarations of Death Act, 2002, S.O. 2002 (“Act”) is the legislation by which Judge’s have jurisdiction to make an order declaring that an individual is dead. It answers the questions of who can apply, who needs to know, and what evidence you must show before the applicant can obtain a Declaration of Death.

“Interested person” may apply

Pursuant to s. 2(1) of the Act, “An interested person may apply to the Superior Court of Justice, with notice to any other interested persons of whom the applicant is aware, for an order under subsection (3)”. So – an interested person may apply but has to provide notice to all other interested persons.

Section 1 of the Act defines “Interested Person” as: 

“interested person” means any person who is or would be affected by an order declaring that an individual is dead, including,

1. a person named as executor or estate trustee in the individual’s will,
2. a person who may be entitled to apply to be appointed administrator of the individual’s estate on intestacy,
3. the individual’s spouse,
4. the individual’s next of kin,
5. the individual’s guardian or attorney for personal care or property under the Substitute Decisions Act, 1992,
6. a person who is in possession of property owned by the individual,
7. if there is a contract of life insurance or group insurance insuring the individual’s life,
   1. the insurer, and
   2. any potential claimant under the contract, and
8. if the individual has been declared an absentee under the Absentees Act, the committee of his or her estate; 

The definitions set out that “spouse” means,

1. a spouse as defined in section 1 of the Family Law Act, or
2. either of two persons who live together in a conjugal relationship outside marriage. (“conjoint”).

A person can fall under one of the above, but if they are not a person “who is or would be affected by an order declaring that an individual is dead”, then they are not an interested person and would not be able to bring the application, nor would they require notice.

If you do obtain an Order, it does not bind an interested person who was not given notice of the application. (s. 2(7)).

Jurisdiction of the Court

Pursuant to s. 2(3) of the Act a Court has the jurisdiction to declare that a person has died: “The court may make an order declaring that an individual has died if the court is satisfied that either subsection (4) or (5) applies.”

Section 2(3) provides for two circumstances in which such a declaration may be made: the first is when "the individual has disappeared in circumstances of peril" (see:s. 2(4)); and the second is when "the individual has been absent for at least seven years: (see: s. 2(5).

Disappearance in circumstances of peril

Section 2(4) states:

Disappearance in circumstances of peril

(4) This subsection applies if,

1. the individual has disappeared in circumstances of peril;
2. the applicant has not heard of or from the individual since the disappearance;
3. to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;
4. the applicant has no reason to believe that the individual is alive; and
5. there is sufficient evidence to find that the individual is dead. 

Examples of what may constitute circumstances of peril sufficient for a Judge to make a Declaration of Death are: the person who disappears while out on a boat and only the empty boat is found, the person who disappears while mountain climbing in an area of avalanche risk, the person who disappears while flying a small airplane in bad weather. 

Missing for seven years

Section 2(5) states:

Seven-year absence

(5) This subsection applies if,

1. the individual has been absent for at least seven years;
2. the applicant has not heard of or from the individual during the seven-year period;
3. to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual during the seven-year period;
4. the applicant has no reason to believe that the individual is alive; and
5. there is sufficient evidence to find that the individual is dead. 

Declaration for Insurance purposes

Section 209 of the Insurance Act, , R.S.O. 1990, c. I.8 states:

Declaration as to presumption of death

209 Where a claimant alleges that the person whose life is insured should be presumed to be dead by reason of his or her not having been heard of for seven years and there is no other question in issue except a question under section 208, the insurer or the claimant may, before or after action is brought and upon at least thirty days notice, apply to the court for a declaration as to presumption of the death and the court may make the declaration.

Insurance companies are “interested persons” under the Act, and pursuant to s. 2(d) require 30 days notice of any Application brought. Depending on the timing, the circumstances, and the evidence presented, the insurer may decide not to oppose such an Application.

If you managed to obtain such an order it will apply for all purposes unless the court narrows the purposes for which it can be used, and specifies those purposes within the order itself. (s. 2(6)).

Date of death

Pursuant to s. 2(8(a) of the Act, the order shall state the date of death to be the date upon which the evidence suggests the person died if they died in circumstances of peril or the date of the application, if they’ve been missing for more than seven years.

Not enough evidence?

The standard of proof is that on a balance of probabilities there is sufficient evidence to find the proposed deceased is dead.

It is important to obtain assistance in making sure the interested person has put their best foot forward in applying for a declaration of death due to a circumstance of peril, seeing as how if the order is denied, they will have to wait seven years before they can try again. If a Court is not satisfied that there is sufficient evidence to justify an order declaring an individual to be dead, the court may make an order under the Absentees Act, 2002, c14 Sched s3. Where appropriate, an Application can seek orders under the Absentees Act, in the alternative. An assessment of what the evidence shows should be made by qualified counsel.

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.