Administering an estate of a missing person can be a complex process. In Zimbabwe in order to initiate the registering of an estate of a missing person, you first have to obtain a presumption of death order from the court and this is done in terms of the Missing Persons Act [ Chapter 5:15]. A presumption of death order is necessary to legally declare someone deceased. This order can be sought by interested parties, typically close family members. In instances where the person making the application is not a person who is the nearest relative of the missing person the relatives must be notified.
Who is a missing person
The Missing persons Act does not define who a missing person is however a missing person has often been described as a person who has disappeared and whose status as alive or dead cannot be confirmed as their location and condition are unknown.
In Zimbabwe, there is no time frame in which one can approach the court for a presumption of death order.
Holding of an enquiry into the circumstances of a missing person
After the application is lodged, the clerk of court publishes a notice in the in the Gazette and in a newspaper circulating in the area in which the person in respect of whom the order is applied for was ordinarily resident or other newspapers as the magistrate may direct.
The court will consider various forms of evidence to determine whether the person should be presumed dead. This can include testimony from witnesses, police reports, expert opinions, and any other relevant information that supports the belief that the person has died.
The burden of proof generally lies with the party seeking the presumption of death. They must present sufficient evidence to convince the court that it is more likely than not that the person is deceased.
Order presuming someone dead
After an enquiry has been conducted, the court can make one of two orders but not both. The Magistrate may make an order presuming that a person is dead or that the person is missing. An order for the presumption of death operates as a death notice and the notice shall be deemed to have been delivered in terms of the Administration of estates Act. Thereafter an administrator must be appointed. The administrator must then carry out his or her duties in the same manner as an executor including registering the estate of that person.
Once a person is presumed dead, their estate can now be administered, and any other relevant legal matters, such as inheritance or insurance claims, can be resolved. The presumption of death order does not, however, extinguish any debts or obligations of the missing person.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.