What to Do When a Loved One Is Missing: Understanding Presumption of Death Applications in BC
When a loved one goes missing without explanation, families are left in limbo—emotionally and legally. If the person is missing for an extended period and there is no evidence that they are alive, the law provides a way to resolve this uncertainty. In British Columbia, this is done through an application under the Presumption of Death Act.
This post explains what the Presumption of Death Act is, who can apply, what the court considers, and what the consequences of such an order are.
What Is the Presumption of Death Act?
The Presumption of Death Act, [RSBC 1996] Chapter 444, is a provincial statute in British Columbia that allows a court to declare a missing person legally dead if there is no sufficient evidence that the person is alive and circumstances justify the presumption of death.
This legal declaration enables families to move forward, both personally and practically, with matters such as:
Estate administration
Insurance claims
Pension or survivor benefits
Property and guardianship decisions
Who Can Apply?
Under the Act, any person with sufficient interest may apply to the BC Supreme Court for an order declaring that the missing individual is presumed to be dead. This usually includes:
A spouse or common-law partner
Children or other close relatives
An executor or administrator of the estate
An insurance company with a policy on the missing person’s life
What Must Be Proven?
The applicant must provide sufficient evidence that:
The person has been missing for a prolonged period.
Despite reasonable inquiries and efforts, no one has seen or heard from the person.
There is no evidence the person is still alive.
The circumstances reasonably support the conclusion that the person has died.
Evidence typically includes:
Police reports
Missing person reports
Affidavits from family and friends
News articles or media coverage
Documentation of search efforts
The person’s lifestyle, habits, and health
The court must be satisfied on a balance of probabilities that the person is dead.
Is There a Waiting Period?
While seven years is often referenced as a benchmark based on the common law, the Presumption of Death Act does not require a fixed waiting period. In practice, courts have granted orders in less time when the circumstances strongly suggest death based on the evidence.
The Court Process
Step 1: File an Application
The application is made in the BC Supreme Court. It must include:
A petition or notice of application
Supporting affidavits outlining the facts
Evidence, typically in the form of relevant documents
Step 2: Serve Interested Parties
You must serve notice of the application on any interested party, including:
The Public Guardian and Trustee (in some cases)
The Insurance Corporation of British Columbia (ICBC) or insurers, if policies are involved
Family members or known beneficiaries
Step 3: Hearing and Judgment
If the court is satisfied that the person is presumed dead, it will issue an order under the Presumption of Death Act.
Why Is a Court Order Necessary?
In British Columbia, a death certificate typically cannot be issued unless there is clear evidence of death, such as a body, official coroner’s report, or similar. Without a court declaration, legal and financial matters remain unresolved. Banks, insurers, and government agencies generally require formal proof of death before releasing funds or transferring property.
Further, once a court order is issued, the assets of the person presumed dead may be distributed and, as such, the court does not take these applications lightly in case the person is in fact alive and well.
This article is provided for general informational purposes only and does not constitute legal advice. No legal relationship is formed by reading or relying on this content.
If you’d like to learn more about a Presumption of Death Act application, reach out to Zachary Dallman for a free consultation. Book or contact Zachary directly at zachary@zacharydallmanlaw.ca or 778.653.6163.