This blog was written by Sally Lee, LLB – Estate and Trust Consultant with Scotia Wealth Management.

When I was in private practice, I worked on a probate file where the deceased was declared dead pursuant to subsection 2(5) of the Ontario Declarations of Death Act.  He was missing for at least seven years and his family members made the application to the court.  I did not work on the application as I was not at the firm when the application was made and subsequently granted.

Under the Declarations of Death Act, there are two circumstances in which such a declaration may be made. The first is when “the individual has disappeared in circumstances of peril” and the second is when “the individual has been absent for at least seven years”. In both cases, it must be shown that:

• reasonable inquiries having been made, the individual has not been heard from since his or her disappearance, or has been absent for seven years;
• the applicant has no reason to believe the individual is alive; and,
• there is evidence to find that the individual is dead.

There is very little case law which discusses declaring one dead based on: 1) disappearance in circumstances of peril, and 2) having been absent for at least seven years.  However, it appears that judges are reluctant to declare one as being deceased based on the first circumstance and would much prefer to declare one to be absent under the Absentees Act:  Puffer v. The Public Guardian and Trustee, 2012 ONSC 3579.  After all, what is “peril”?  Peril would, undoubtedly, turn on the facts of the case.  The second circumstance would be the easier route as there is a presumption of death where a person has been missing and unaccounted for more than seven years: Sherman v. National Life Assurance Co. of Canada, [1996], 130 D.L.R. (4^th) 752 , aff’d [1996] O.J. No. 1692 (Q.L.) (Div. Ct.); Pavicevic v. Iannarelli, 2008 ONCA 865; Mezo (Re), 2010 ONSC 4968.  However, while aided by the presumption, the onus remains on the applicant(s) to take reasonable steps to ensure that no other person has heard of or from the individual during the seven year period.

Going back to the file I worked on, when the deceased was declared dead by the court, his will came into effect.  In the seven years he was missing, certain family relationships became irretrievably broken.  And the person (individual with no blood relation) who was no longer part of the family ended up receiving half of the deceased’s estate. Certainly and obviously, nothing could have been done to make any changes to the deceased’s will.  However, I hope the readers will be cognizant of the fact that wills should be periodically reviewed based on changes in family circumstances, financial affairs and other situations which may impact one’s estate planning.