The disappearance of a person creates a big problem namely because:
- An estate would need to be administered;
- Heirs may require inheritance at some point or another; and
- The missing person’s spouse may want to remarry.
In the first case, one would need to apply to the High Court for an appointment of a Curator Bonis to oversee and distribute the estate of the missing person while the person is missing. However, for the last two scenarios, which presume the death of the person, you would need to make an application to the High court for an order that the missing person is to be presumed to be dead.
The Presumption of death can be done in two ways:
- In terms of the Common law: where any person living in the area of the missing must prove on a balance of probabilities that the person is dead; or
- In terms of Statutory law: which would allow the court to state that the person died of unnatural causes
South African Courts unlike English Courts don’t solely look at the period of time that someone is missing but look at many factors which someone went missing such as:
- The circumstances which the person disappeared;
- The period of time they have been missing for;
- Age of the missing person; and
- The health of the person.
It is important to note that this order is rebuttable and can be set aside as it is a presumption of death and not a guarantee of death.
It is also to be kept in mind that there are consequences to the order of presumption of death such as:
- When inheriting, heirs must pay over security in case the missing person returns, this includes payments from life policies; and
- Spouses who want to remarry have to apply for a dissolution of the marriage by an order of the court as the presumption of death in no way dissolves the marriage of the missing person and their spouse.
For more information on the law of persons please contact our offices today on 031 003 0630 or email us at Charmaine@schwenninc.co.za