Trevor Todd and Jackson Todd have over 65 years of combined experience in resolving estate disputes including presumption of death orders.
In Re Indridson 2026 BCSC 2084 the court made an order that the deceased was presumed dead as of January 9,2022 being the last day that he seen alive.
The deceased was extremely anxious over a new job. H left home leaving a note that stated ” “I’ll be there for everyone in spirit.”. He left his phone and wallet.
A search by police and two private investigators could not locate him and no trace of him was found in the intervening 4 1/2 years.
The test for such an application is set out in s 3(1) of the Presumption of Death Act, RSBC 1996, c 444. Applications may be made by “interested persons”, which is a term defined in s 1 of the Act and includes a person who is or would be affected, the next of kin of the person, and a person who holds property of the person. Such applications need to state a date when the applicant believes the person to have died (“a day named”).
[4] The court must be satisfied:
- a) that the person has been absent and not heard of or from by the applicant, since the day named;
- b) that the person has not, to the knowledge of the applicant, been heard of or from by any other person, since the day named;
- c) that the applicant has no reason to believe that the person is living;
- d) that there are reasonable grounds for supposing that the person is dead.
[5] If these prerequisites are established on a balance of probabilities, then the court has residual discretion not to give such an order or to make the order apply only for certain legal purposes, which would mean the person would be considered to still be living for other purposes. That discretion needs to be exercised judicially of course. Since the order may only be granted if there are reasonable grounds for supposing the person is dead, the basis for exercising such discretion would be if there are persons whose legal interests would be negatively affected by such an order if the person is ultimately found alive and the probability that this might take place is sufficient to outweigh the prejudice to those whose legal interests require finality on the question of legal death.
[6] Subsection 3(2) states that that order must state the date on which the person is presumed to have died.
