The claimant, who was an executor under F’s will, applied under section 1(2) of the Presumption of Death Act 2013 for a declaration of presumption of death in relation to F, a missing person, which she needed in order to apply for and obtain a grant of probate. The claimant not being F’s spouse, civil partner, parent, child or sibling, the court was required under section 1(5) of the 2013 Act to refuse to hear the claim unless it considered the claimant had a sufficient interest in its determination.
On the claim and the question whether the claimant, as a putative executor, satisfied the sufficient interest requirement in section 1(5)—
Held, claim allowed. In general, an executor owed fiduciary duties to the creditors and beneficiaries of the estate, therefore in considering the position of a putative executor the court was necessarily also considering the position of those who would benefit from the estate. The need at least to show that the missing person was presumed to be dead meant that a declaration would be useful even if it subsequently turned out that the testamentary paper put forward by the putative executor was not a valid will. Since a putative executor could not, prior to a successful probate application, obtain any rights in relation to a person’s estate, there was no risk to the estate in allowing the application for a declaration to be made. Accordingly, a person who intended to prove a testamentary paper did have a sufficient interest for the purposes of section 1(5) of the 2013 Act in applying for a declaration of presumption of death (paras 18, 19, 22, 23).
James Fuller (instructed by Chubb Bulleid Ltd, Somerton) for the claimant.