1. Introduction

A recent English case drew my attention because it explored the question whether an executor can make an application to the court for an order declaring that a specific person is dead. I had assumed that the answer was simple: of course, he can do so, since he has an interest in the matter. This led me to check the Canadian statutes on declaration and presumption of death. And I discovered that, except for one, they do not explicitly allow the executor to make the application.

Of course, in the normal case when a named executor applies to have the will probated, she must provide proof of death,^[1] and give the date of death.^[2] But when the deceased is missing that is not possible and an application for a declaration that the missing person is dead is necessary. In most cases the application will be brought by a beneficiary under the will. However, when no beneficiary wishes to bring it, the question is whether the named executor can do so.

The English case is Tolley, re Fisher,^[3] a decision of HHJ Paul Matthews, sitting as a Judge of the High Court. Ms. Fisher made a will in 2020 and appointed her close friend of many years, Kerry Tolley one of her executors. In 2022 Ms. Fisher drove down to Cornwall and entered the sea there. She has not been heard from since. Her only close relatives are two cousins. Ms. Tolley alone intends to prove the will and the two cousins support her application for a declaration that Ms. Fisher is presumed to be dead.

In paragraph 1 of his judgment Justice Matthew states that he was satisfied on the evidence that Ms. Fisher was dead and held that it was not necessary for the purpose of the judgment to examine the evidence. As he explained in paragraph 2, before Ms. Tolley can apply for probate, she must show that she has standing to apply for the declaration. The Presumption of Death Act 2013^[4] posed a problem. Section 1(2) provides that any person may apply for a declaration. However, subsection (5) provides:

The court must refuse to hear an application under this section if—

(a) the application is made by someone other than the missing person’s spouse, civil partner, parent, child or sibling, and

(b) the court considers that the applicant does not have a sufficient interest in the determination of the application.

Thus, it seemed that Ms. Tolley might lack standing. Indeed, the cousins might have lacked standing too, had they brought the application, and a long-term partner would also have been excluded. In those circumstances, how then can the will be probated? This seems like a Catch 22 situation. Although the persons listed in subsection (5)(a) do not have to show a sufficient interest in determining the application, everyone else does. So, the question remains whether an executor has a sufficient interest.

2. Analysis and Judgment

Part of the problem is that when the application is made, the court does not yet know whether the will presented by the applicant is a valid will. It may turn out that it is not valid or that the document is not the deceased’s last will. That has yet to be proved. Justice Matthews noted that although an executor’s title goes back to the deceased’s death whereas the title of an administrator does not, an administrator of an intestate estate, once appointed, clearly has a sufficient interest in the determination of the application for a declaration that the missing person has died. In that case it is clear from the outset who is entitled under the intestacy rules to share in the estate and the administrator will have a fiduciary duty toward them. Should a putative executor be in a worse position even though the entitlement of beneficiaries under the will is unestablished for now, as indeed is her entitlement to act as executor? That does not seem right. Besides, the putative executor will also ow fiduciary duties to the creditors and beneficiaries of the estate when appointed.

For these reasons Justice Matthews held that a person who intends to prove a testamentary document does have a sufficient interest in applying for a declaration of presumption of death. Of course, that is not the end of the matter. Having obtained the declaration, she must then go on to prove the will.

3. Application to Canada

Is any of this relevant to Canada? It may be in some of the provinces.

Most of the common law provinces and territories do have presumption of death or declaration of death legislation, but the statutes vary significantly from province to province. I shall divide them into discrete categories.

1. Named executor. Ontario’s statute is the only one that expressly gives a named executor (as well as other named persons) standing to bring an application for a declaration that an individual has died by declaring him an ‘interested person’.^[5]
2. Any other person. The statutes of several of the other provinces contain lists of people who may make a presumption of death application. (The Saskatchewan list is prioritized.) One of the persons named is ‘any other person who, in the opinion of the court, has a sufficient interest in the estate of the person alleged to be missing’ or words to that effect.^[6]
3. Any person who is of would be affected by an order. Other Statutes contain a definition of ‘interested person’ and provide that an interested person has standing to bring an application or originating notice of motion. However, the list of interested persons do not include a named executor or ‘any other person’. But they do include the category of ‘any person who is or would be affected by an order made under this Act’.^[7]
4. Any person interested. PEI’s statute allows ‘any person interested’ to apply for an order.^[8]
5. No restriction. Two statutes do not place any restriction on who may apply for an order.^[9]
6. No legislation, it appears that Alberta is the only province that does not have presumption of death legislation. Instead, the courts there rely on the common law presumption.

I am not aware of any Canadian cases in which the issue decided in Tolley, re Fisher was raised. The issue clearly does not have to be decided in Ontario. And it is surely arguable that a named executor in category II clearly has a sufficient interest in the matter. The same can be said of persons in category III but the argument is a bit more tenuous in this case. In my view it would be difficult to argue that executors in the last three categories would have a sufficient interest. However, executors in their case, as well as those in categories II and III, can now rely on Tolley, re Fisher in support of their argument that they should have standing.

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[1]See, e.g., Rules of Civil Procedure, RRO 1990, Reg 194, r 74.04(1)(b).

[2]Ibid. Form 74A, Part 2.

[3][2023] EWHC 979 (Ch).

[4] 2013, c 13 (UK).

[5] Declarations of Death Act, 2002, SO 2002, c 5, ss 1(a), 2(1), 3.

[6] See, e.g., Missing Persons and Presumption of Death Act, SS 2009, c M-20.01, ss 3(1)(g), 15(1); Presumption  of Death and Declaration of Absence Act, CCSM c P120, s 3(1)(c).

[7] Presumption of Death Act, RSNS 1989, c 354, ss. 2(b), 3(1); RSNWT 1988, c P-9, ss 1, 2(1); RSNWT (Nu) 1988, c P-9, ss 1, 2(1); RSY 2002, c 174, ss 1, 2(1); RSBC 1996, c 444, ss 1, 3(1).

[8] Probate Act, RSPEI 1988, c P-21, s 38(2).

[9] Presumption of Death Act, RSNB 2012, c 110, s. 2(1); RSN 1990, c P-20, s. 3(1).