Richard Paige discusses the case of Knauer v Ministry of Justice [2016] UKSC 9, and the changes to the calculation of damages in Fatal Accident Act cases.

Lord Lucan and the Presumption of Death Act 2013

The press has been awash with reports of the recent case in which Lord Bingham, the son of the 7th Earl of Lucan, obtained a Court Order which finally allowed him to succeed to the title held by his father – who had been missing for over 40 years following the death of a former nanny.  The case attracted frenzied press coverage in 1974 when the family nanny, Sandra Rivett, was found dead at the home of Lord Lucan’s estranged wife in Belgravia. Suspected of her murder, Lord Lucan fled and was never seen again.  However, this was only the beginning of the saga for the family. Over the ensuing years there were regular reports of sightings of the fugitive peer. None were confirmed, and an alternative theory was that he had committed suicide shortly after the murder.

The family were eventually permitted to obtain probate of the missing Earl’s estate in 1999 – some 25 years after his disappearance. That enabled them to wind up his financial affairs. However, under the law as it stood at the time his son and heir, George Bingham, was not permitted to succeed to his tile. The grant of probate operated only so as to permit personal representatives to deal with the Earl’s financial affairs – but it did not operate for any other purpose, including succession to hereditary titles; nor indeed did it have the effect of dissolving any marriage or civil partnership to which the missing person was a party.

The Presumption of Death Act 2013

The law was finally changed by the Presumption of Death Act 2013, which came into effect on 1st October 2014. Similar legislation had been in force in Scotland since 1977 and in Northern Ireland since 2009 – it is difficult to understand why it should have taken so long to enact a similar law in England & Wales.

Section 1 of the Act allows any person to apply to the High Court for a declaration of death where a person is thought to have died or has not been known to be alive for at least 7 years – although the applicant must have a ‘sufficient interest’ in the outcome. It is a requirement that the missing person was either domiciled or habitually resident in England and Wales for at least 1 year when he was last known to be alive.  The applicant must satisfy the same condition on the date upon which the application is made.

It should be noted that, contrary to some press comment, it is not necessary to wait 7 years before making the application.  Section 1(1)(a) permits an application where the missing person is ‘thought to have died’.  Thus a much earlier application could be made in a case where there is clear evidence of likely death, although no body has been found. Examples would be where there has been a disaster such as an air crash, where someone departed on a dangerous journey and simply disappeared, or in cases of apparent suicide.  In such a case evidence would be required to prove presence at the scene of the disaster, departure on the journey together with evidence of the failure to return, or circumstances suggestive of suicide.

The effect of a declaration under the 2013 Act is much more far-reaching than a permission to obtain a grant of probate was under the old law. It is conclusive of the missing person’s presumed death and of the date of such death – against all persons and for all purposes: Section 3.

However, should the missing person subsequently re-appear or evidence be obtained as to the actual circumstances of his death the Court does have a power to revoke or vary the Presumption of Death Order.  However, this will not affect an interest in property acquired as a result of the original declaration or revive a marriage or civil partnership which the original Order had brought to an end (Section 6).


There is, as yet, little case law on the principles to be applied by the Court when determining applications under the Act. In the Lucan case the application was ultimately unopposed, after a last minute withdrawal of objections.

In Northern Ireland the case of Re O’Flaherty née Donnelly [2012] NI Ch 2  is a good illustration of an application made within 7 years of disappearance – and the sort of evidence required to support such an application. In that case Deirdre O’Flaherty left her husband and children in their holiday cottage early one morning, and was never seen again.  Her car was subsequently discovered on a beach by the Atlantic Ocean with the ignition keys and several personal items still in it. She had left behind her wedding and engagement rings, passport, mobile phone and cards for her children telling them that she loved them. There was no subsequent activity on her bank or credit card accounts. Despite there being no problems in her marriage, and no apparent reason why she should commit suicide, Deeny J had no hesitation in making a very specific finding that she died on the last day she was known to be alive.

As a result of the passing of the Act, Lord Lucan’s son and heir George Bingham (Lord Bingham) applied to the Court for a declaration of his father’s death. After a short and ultimately unopposed hearing on 3 February 2016 Asplin J made the declaration that the 7th Earl of Lucan was presumed to have died on or after 8 November 1974.  Thus ending a 41-year saga and allowing George Bingham finally to assume the title of 8th Earl of Lucan.

It is to be hoped that the need to utilise the provisions of the Presumption of Death Act 2013 is rare.  However, in an appropriate case it is a useful provision which allows death to be presumed for all purposes in a legally binding way. The arrival of a statutory framework within which to deal with the legal consequences of a person going missing is to be welcomed – especially as such situations are invariably stressful for those left behind even where there is no background of suspected murder.

A major part of David Rose’s practice relates to probate and inheritance matters, including those with an international dimension. David is speaking at our Chancery Seminar on 31st March 2016 – to book your place follow this link.