Where a client has a close family member who is missing, there are a number of issues that you should be aware of.
If a person has been missing for 7 years or more, family members can apply to the courts for a declaration to state that a person is presumed dead. Family may have already completed this, in such case your client will likely not wish to include the missing person (any gift to them in the Will would in fact fail, as they are presumed dead).
If no declaration has been made and the client may wish to exclude the missing person completely from the Will. If he was to reappear, the client should be advised of the possibility of a 1975 Act claim. A claim under the act does need to be made within 6 months of a grant of probate or letters of administration and will only be extended in very specific circumstances.
It may be the case that the client wishes to include the missing person as a beneficiary in the Will in case he appears again.
In such a case, executors would have extra responsibilities. They would need to make every effort to find the missing person. This may extend to making enquiries with the deceased’s friends and other relatives to obtain the beneficiary’s whereabouts, taking out advertisements in local papers in the area that the beneficiary was last known to be residing and placing the usual section 27 advertisement in the London Gazette.
If the person cannot be found by the executors, they would have 3 options:
- The legacy may be paid into court and the rest of the estate distributed accordingly. The court would keep hold of the legacy for a certain number of years in case the person reappears and if he does not then it would be distributed accordingly according to the terms of the Will.
- The executors could apply for a Benjamin Order; this is an order granted by the court giving leave to distribute the estate on a certain assumption, for example the assumption that the missing beneficiary predeceased. This would allow the executors to distribute the estate to the other beneficiaries. Prior to the granting of the Benjamin Order the executors would be expected to have done all they can to trace the beneficiary. Applying for a Benjamin Order would be an expensive procedure.
- Another available option is for the executors to take out missing beneficiary insurance and distribute the estate accordingly to other beneficiaries. Again, all reasonable steps must have been taken to trace the missing beneficiary.
If a client does wish to include a missing person in the Will, due to the additional work that the executors would need to complete it would be highly advisable to include professional executors.