What is meant by “presumption of death”?
In Scotland, there is a legal procedure which allows you to apply to the court for a missing person to be declared dead. If your application is successful, the resulting court order allows any money, property and other possessions of the missing person to be administered and any marriage or civil partnership dissolved.
When a person has gone missing, there is no body or a medical certificate to provide legal recognition that they have died. Instead, you would need to raise an action of declarator of the death of the missing person and satisfy the court that they are presumed to have died. If your action is successful, the court will grant a decree of declarator of death and notify the Registrar General for Scotland in order that the death can be registered.
In Scotland, the Presumption of Death (Scotland) Act 1977 governs the procedure of a legal declaration of the presumed death of a missing person.
Who can apply to the court to declare that a missing person is presumed to have died?
Anyone with an interest can raise an action of declarator of death of a missing person in the
Court of Session or in the
sheriff court, subject to certain conditions concerning domicile and residence (see
“Where can I raise an action of declarator of death of a missing person?” below)
When can I apply to the court to declare that a missing person is presumed to have died?
The missing person must either:
- be thought to have died; or
- have not been known to be alive for at least 7 years.
In certain circumstances, if the missing person is thought to have died, you can raise an action immediately, without having to wait for seven years (for example, if a person goes missing at sea).
However, if the ground of the action is that no one has heard of the missing person for seven years, you will have to wait for that seven year period to expire before raising the action.
If you wish to raise an action under the Presumption of Death (Scotland) Act 1977 we would recommend that you seek legal advice. Contact details for solicitors in your area can be provided by the Law Society of Scotland.
Where can I raise an action of declarator of death of a missing person?
Actions can be raised in the Court of Session or in the sheriff court depending on the following conditions.
You can raise the action in the Court of Session if you can say yes to one of these statements:
- The missing person was domiciled in Scotland or was habitually resident in Scotland for one year before they went missing; or
- You are the spouse [or civil partner] of the missing person, and you are domiciled in Scotland or have been habitually resident in Scotland for one year before the date that you raise the action.
You can raise the action in the sheriff court if you can say yes to one of these statements:
- The missing person was domiciled in Scotland or was habitually resident in Scotland for one year before they went missing and the missing person’s last known place of residence in Scotland was in the sheriffdom; or
- You are the spouse [or civil partner] of the missing person, and you are domiciled in Scotland or have been habitually resident in Scotland for one year before the date that you raise the action and you have been resident in the sheriffdom for at least forty days before the date that you raise the action.
‘Domiciled’ means that you regard Scotland as your permanent home and you intend to live permanently in Scotland in the foreseeable future. ‘Habitual residence’ means that you have your main residence in Scotland.
If you wish to raise an action under the Presumption of Death (Scotland) Act 1977 we would recommend that you seek legal advice. Contact details for solicitors in your area can be provided by the Law Society of Scotland.
Are there court rules in respect of actions of declarator of death of missing persons?
There are court rules which govern each step of the court procedure.
The procedure for raising an action in the Court of Session can be found in chapter 50 of the Court of Session Rules
The procedure for raising an action in the sheriff court can be found in chapter 37 of the Ordinary Cause Rules
If you have any questions about the court procedure, please contact your local sheriff court, or the Court of Session if you plan to send your application there.
What forms do I use to raise an action of declarator of death of missing person?
There is no set application form to be completed in such cases.
If you are raising the action in the Court of Session you will need to fill in a summons Form 13.2A
If you are raising the action in the sheriff court you will need to fill in an initial writ Form G1
The drafting of the summons or initial writ can be complex and we would recommend that you seek legal advice. Contact details for solicitors in your area can be provided by the Law Society of Scotland.
How much will it cost to raise an action of declarator of death of missing person?
Court fees are payable for lodging these applications in court.
The fees will depend on whether the application is lodged in the
Court of Session or the
sheriff court.
You may be entitled to fee exemption, for example if you receive certain state benefits. See
Court Fees for more information.
Download the Fee Exemption Form
These fees do not include any fees you may need to pay if you have instructed a solicitor to help you. The solicitor can give you information on these costs.
Will I have to attend court in respect of my application?
The circumstances where you may be asked to attend court will depend very much on whether your application is contested or not.
What evidence will satisfy the court that the missing person can be presumed to have died?
In Scotland we have a legal system that deals with every case on its individual merits. The legislation is interpreted to the needs of every individual case and as such, evidence required by the court will vary.
Where can I get information about the court process?
If you have any questions about the court procedure, please contact your local sheriff court, or the Court of Session if you plan to send your application there.
Scottish Court Service staff are not legally qualified and cannot provide you with legal advice in respect of your application.
Where can I get legal advice?
If you need legal advice, or information on eligibility for legal aid or assistance, the Law Society of Scotland can provide contact details for solicitors in your area.