Trevor Todd and Jackson Todd have over 60 years combined experience in estate litigation matters including applications for Presumption of Death orders.
Re Martin 2024 BCSC 1948 dealt with a presumption of death order that was granted in October 2024 with respect to an individual who went missing in December 2009 and most likely died in a fire. His personal effects including passport, identification and money were found in his car.
The missing person had just recently been accused of several sexual assaults.
The court found it probable that after all the passage of time that the deceased likely died in the fire where he worked.
Section 3(1) of the Presumption of Death Act, R.S.B.C. 1996, c. 444 [Act] creates a presumption of death in certain circumstances:
3 (1) If, on the application of an interested person under the Supreme Court Civil Rules, the court is satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) the applicant has no reason to believe that the person is living, and
(c) reasonable grounds exist for supposing that the person is dead,
the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.
There is no requirement in the Act for seven years to have passed before the presumption can apply as was the case at common law: Re Schmidt, 1987 CanLII 2730 (B.C.C.A.) at para. 12.
The standard of proof rests on the petitioners on the balance of probabilities: Re Schmidt at para. 13; Re Cyr, 2006 BCSC 1523 at para. 7.
A helpful list of non-exhaustive factors is provided in the Alberta King’s Bench decision of Comey Estate, 2010 ABQB 343 at para. 58, with citations removed:
a. the time, location, and circumstances of the disappearance;
b. the extent and nature of the post-disappearance searches;
c. a prior history of fraud;
d. the presence or absence of a motive for missing person to remain alive but disappear;
e. the time between a life insurance policy being obtained and the subsequent disappearance;
f. facts suggesting the disappearance was a consequence of foul play; and
g. abandonment of valuable property.
