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Missing and Presumed Dead

It is often assumed that if a person has been missing for seven years, it is easy to have him declared dead so the family can go about its business.

This was not necessarily the case. The courts looked at each case on its individual merits and sometimes required an absence of more than a decade.

Petitions were usually put in to have a man declared legally dead where there was property involved, or if the wife wanted to marry another. If she was officially declared a widow, she could not be charged with bigamy nor adultery when the husband returned alive. However, no matter what the circumstance the second marriage would not be valid and the children were not legitimate. This was true even if the husband returned more than a decade later.


In one case, when the father was presumed dead, the mother gave permission for the daughter to marry by license. Years later the father returned from his sojourn abroad. The daughter’s marriage was declared invalid and her children illegitimate because she had married without her father’s permission. ( see section on illegitimacy)

There are court cases in which a man was finally declared dead after more than two decades. These cases usually involve legacies.

Because supposedly dead people did return, the courts were in no hurry to have them declared dead. One man came back fourteen years after he was declared missing. The courts had refused to declare him dead.

One officer in the military was declared dead in battle by his comrades in arms, his superior officers and the list of dead and injured issued by the army. The brother asked for the authority to settle his brother’s estate and received it. Then the “dead” man returned. The letters of administration of probate were cancelled, the brother returned the papers and all sales and gifts were cancelled. Fortunately, the man returned a short time after he had been declared dead and not years later.

The question is often asked : How long must a peer be missing before he is declared dead? How long before his son can succeed to the peerage?

BBC News - UK Lord Lucan 'officially dead'

It is very difficult to have a peer declared dead and further problem to have his heir succeed to the peerage. A modern example of a missing peer is the 7th Lord Lucan who is accused of murder. It took close to twenty years for his son, Lord Bingham to have his father declared dead and himself the owner of the hereditable estates. As there is no longer a question of having to apply for a seat in the house of Lords , he feels free to style himself as the 8th Earl of Lucan.

Circumstances determine cases. The circumstances of the disappearance and the age of the man come into the picture as well as his marital status.

The decision of the court would depend on individual circumstances. Was the man known to be on a ship that sank? Did he go off to explore darkest Africa? Had he made arrangements for his property, etc.? How old was he when he disappeared? Had he written anyone ever? Was he married? Did he have a legitimate son?

The courts would be slower to declare a man dead who was unmarried and had no legitimate sons as there was a possibility of the man marrying and having a son while absent.

If a man left a legitimate son, that son had a better chance of having his father declared dead so as to allow him to manage the property. During the Regency when being a Protestant Peer entitled one to a seat in the House of Lords, everyone was much more reluctant to allow the son to succeed to his father’s peerage. The son might have to wait until his father would have been eighty years old before he would be declared dead and he could succeed to the dignity.

If the father had a lesser barony among his dignities, the son might be given a seat in the house of Lords by a writ of acceleration. That is a possibility not a probability and I know of no case where it really happened when the father was missing.



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