Saturday, September 15, 2012

Evidence That a Missing Person Has Died

If someone strangely disappears, how can you prove that they died?

In British Columbia, we have the Survivorship and Presumption of Death Act, which allows an interested person to make an application to the Supreme Court of British Columbia for an order declaring that a missing person has died. An “interested person” means someone who would be legally affected by the missing person’s death, such as his next of kin or beneficiary of life insurance. The order must state the date the person is presumed to have died.

Other Canadian provinces have similar legislation. For example, Saskatchewan has The Missing Persons and Presumption of Death Act.

It was in Saskatchewan where Antonie Anne Medzech disappeared after being dropped off by her son at a shopping plaza on December 13, 2002. As succinctly set out by Justice Danyliuk,

She was never seen or heard from again. There was no activity involving any of her finances. It is as if she was swept off the earth. Diligent police investigations yielded nothing.

Nine years later, her son applied to the Saskatchewan Court of Queens Bench for a declaration that his mother died. On these facts, in Re:Medzech, 2012 SKQB 216 Justice Danyliuk had little difficulty in making the declaration that she had died. In his reasons, Justice Danyliuk set out a list of some of the evidence that is helpful to the court in an application for a declaration that someone has died:

[9]                    On all applications of this type, certain materials should be filed as a matter of course. While the following list is not intended to be exhaustive, it may be of some assistance to counsel in drafting future applications of this type:

A.  The Disappearance
(i)         Are there any indications at all as to what happened to the missing person?
(ii)        Is there evidence as to possible explanations, such as accident, suicide, homicide or misadventure?
(iii)      What was the health status (physical and mental) of the person? In some cases, medical evidence may be required.
 (iv)      What was the personal and legal status of the person? That is, was he or she facing family strife, relationship issues, financial trouble, employment issues, or legal problems?
(v)        Within the time prior to disappearance did anything out of the ordinary occur that involved or affected the person?
(vi)      Had the person previously disappeared, for any time and any reason? Full particulars should be provided, to show whether this was in or out of character for the person.
(vii)      Was a suicide note, or any other indicator of a reason to disappear, left by the person?
(viii)     Apart from the above, were there any other signs or indicators that the person had  a plan to have or disappear, or any possible reasons for doing so?
(ix)      Prior to the disappearance, did the person take, remove, sell, gift or otherwise deal with or dispose of any assets, including: money, investments, debts, credit facilities, clothing, personal items, sentimental items, pets, vehicles? Did they access a safety deposit box?
(x)        Did the person do or say anything in the nature of a goodbye or indicate they would be gone forever or for an extended period?
(xi)      Were any recent changes made to a last will and testament, power of attorney, or health care directive?
(xii)      What type(s) of relationships did the person have with family, friends, colleagues and co-workers? Where were all such people located?
(xiii)     Did the person have acrimonious or bad relationships with anyone?
(xiv)     How abrupt was the disappearance?
 (xv)      Did the person have relationships with others where regular contact was maintained? If so, what happened to this contact?
(xvi)     Do any of these people have any theories as to what happened to the missing person?

B.  The Investigation
(i)         Was the persons disappearance reported to the police? If not, why not? If so, when? Account for any delay.
(ii)        Did the police investigate and, if so, what were the steps taken and results obtained?
(iii)      If possible, file copies of the police reports and/or evidence from the investigating officer(s).
(iv)      Did any family or friends take steps to try to trace or locate the person and, if so, what was done?
(v)        Was the media involved in efforts to locate the person? Provide particulars.
(vi)      Was a private investigator retained to attempt to locate the person?
(vii)      Were any inquiries made at and near the last known location the missing person was known to have been?
(viii)     If there are any places the person might go to, were inquires made in such location(s)?
(ix)      Were financial records investigated regarding activity before and after the disappearance? Was anything out of the ordinary? Were credit checks conducted?
(x)        Were inquiries made of government agencies to determine recent activities? This would include passports, pensions, licences and registrations, taxes and benefits, other official documents.
 (xi)      Were inquiries made of the persons health care providers to determine if they have any helpful information?
(xii)      Were electronic media checked (computers, flash drives, email accounts, social networking sites) for activity or information?
(xiii)     Were transporters (airlines, rail, vehicle rental, travel agents) checked for recent involvement with the missing person?
(xiv)     Were cellphone accounts investigated?

C.  The Financial Situation
(i)         Did the person have a will? If possible, file a copy.
(ii)        Provide an inventory of the persons assets and debts, both at the time of disappearance and the time of application.
(iii)      If there have been any changes in family, dependant or beneficiary structure since disappearance, provide full details including how the persons property would pass to beneficiaries.
(iv)      Provide a full description of the family both at date of disappearance and date of application, including whether such family members had spouses or issue, and if any have died, particulars as to their estates.
 The other question that the Court needed to address is the time at which Mrs. Medzech was presumed to have died.

In the intervening years since she disappeared, Mrs. Medzech’s husband and her daughter also died. She died without a will. If she died before her husband and daughter, then they (and now their heirs) may have an entitlement to part of her estate under Saskatchewan’s laws dealing with how assets are distributed when someone dies without a will. If she were found to have died after them, then they (and their estates) would not have an interest.

Justice Danyliuk found that in the circumstances it was most likely that she died on the date she disappeared, and the Court declared that December 13, 2002 was the date of death.

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