Yesterday, the Toronto Star reported that Judy Samson’s 38-year search for her brother, Alexander “Sandy” Gammie had finally ended. For 38 years, Ms. Samson had never stopped looking, reportedly even asking the police in Hawaii while she was on vacation whether he had returned to the state. She reported him missing to the RCMP in May 1975 and later hired two private investigators.
Last week, the RCMP in Kamloops, B.C. advised her that her brother’s body had been found in Vancouver in 1975 — the same year he went missing. The connection was apparently made by the coroner’s Identification and Disaster Response Unit, while searching a series of databases, including dental and DNA records, to determine if there’s a match to someone’s body—otherwise she may never have known what happened to Gammie.
In this case, the family members who were searching received a definitive answer to the question of what fate their loved one met. Obviously, not every story ends with as much certainty. This leads to the question of how missing people are declared deceased and what happens to their estates.
When the question arises whether a missing person is still alive, Ontario legislation specifies that an “interested” person may apply to the court for a declaration that the person is deceased. An “interested” person is defined as any person who is or would be affected by an order declaring that an individual is dead. This includes a prescribed list of people, such as the individual’s spouse, next-of-kin and executor named in their will.
Some of the conditions necessary for a successful application under the legislation are that the individual has disappeared in circumstances of peril or has been absent for at least seven years; the applicant has not heard from the individual since the disappearance or during the seven-year period; and the applicant has no reason to believe the individual is alive.
Notably, if after a person has been declared deceased by court order and any of their property has been distributed, the individual is discovered to be alive, the individual is not entitled to recover the distributed property. The court does, however, have the discretion to order a recipient to return property to the individual.
Where a person is missing but the situation does not meet the requirements for the person to be declared deceased, another person can apply to court under provincial legislation to be a committee—that is, guardian—of a missing person’s property.
If you know of a person that has been missing for an extended period and need assistance to determine what steps should be taken in this regard, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
