It seems obvious to say, but the general rule is that a person must be dead before succession can occur. Death is proved by obtaining a death certificate signed by a medical practitioner. This is important: without proof of death, an estate cannot be administered.

So what happens if a person simply disappears, for example at sea, and a body is not found? Here an application must be made to the High Court for an order pronouncing a person to be presumed dead. Only when a court makes a “presumption of death” order can the disappeared person’s estate be administered and life policies collected. Because it is possible that the deceased might still be alive, this case constitutes an exception to the rule that he or she must be dead before succession can occur. For this reason, it is also customary for a court to order that the estate of the person presumed to be dead should be distributed amongst his heirs subject to the provision of security that the estate can be returned to the missing person should he or she reappear.

Factors which a court may take into consideration in making such an order include the length of time that the person has been missing, the age and health of the person as well as the circumstances of the disappearance. Here are a few examples illustrating how our courts have treated such applications:

In a 1996 case the court held that proof that the missing person suffered from depression and high blood pressure was not sufficient to presume his death, and his absence for a period of two years was deemed insufficient for a presumption to be made

In a 1956 case it was held that the fact that a person had been missing for 30 years was considered insufficient reason for announcing a presumption of death

However, in another 1956 case a presumption was declared where a person had been for a swim in the sea and had disappeared, even though he had not been missing long.