Back from the dead.

NUTLEY BOY

This is just a theoretical.

Testator Tom is a deep sea mariner. His ship goes down in a typhoon off China. No trace of him ever surfaces. After 10 years a High Court declaration is made that Tom is dead.

The estate is then dealt with by the executors and bequests are distributed to the beneficiaries.

Tom turns up 5 years after he is declared dead. What rights and responsibilities would Tom and the beneficiaries have in relation to the distributed assets of his estate ?

Peregrinus

Succession Act 1965 s. 49 is the provision that says that legal personal representatives are to distribute the assets in a deceased estate to those entitled. S. 49(3) provides that "nothing in this section shall prejudice the right of any creditor or claimant to follow any such assets into the hands of any person who may have received them".

If I were Tom, returned from the dead, that's the one I'd hang my hat on. I'd lay claim to my assets and say, right, I'm a claimant, s. 49(3) preserves my rights, I have a better claim to the assets that the people who received them on foot of a now-rebutted presumption of my death, I'll have them back, please.

The per reps, I think, are out of the picture at this point. If Tom is bringing court proceedings, he brings them against the people actually holding the assets now.

Bit of a problem if the beneficiaries have already sold/consumed the assets. I don't think Tom could follow the assets into the hands of a bona fide purchaser for value; instead he'd look for some form of redress/compensation in the form of an award of damages against the heirs who sold/consumed the assets.

BoatMad

Bit of a problem if the beneficiaries have already sold/consumed the assets. I don't think Tom could follow the assets into the hands of a bona fide purchaser for value; instead he'd look for some form of redress/compensation in the form of an award of damages against the heirs who sold/consumed the assets.

Surely the purchase of an asset , being claimed by another as their property is not legitimised by the purchase of it by a forth party , irrespective of whether that sale was considered bone-fide.

Marcusm

BoatMad wrote: »

Surely the purchase of an asset , being claimed by another as their property is not legitimised by the purchase of it by a forth party , irrespective of whether that sale was considered bone-fide.

Why not; it's generally an exception to the nemo dat rule except that, in this case, the position would be stronger as there would be a court declaration of death.

Victor

Well, are damages adequate?

Peregrinus

Well, if the asset is land, and if the land has been registered to the heir/beneficiary and he sells it to a bona fide purchaser for value who has not notice of the claim by Tom, the purchaser gets good title and Tom and the beneficiary get to squabble over the sale proceeds.

If it's personal property, I wonder how realistic the question is? Tom has been missing for fifteen years; how much is the car that he last drove fifteen years ago worth? Is he really interested in pursuing his old dining-room table into the hands of a person who bought it at auction? Etc, etc.

There's a provision in the Land And Conveyancing Law Reform Act 2009 s. 18 that deals with land held under an estate or interest that depends on someone's life. If the presumption of death applies (so that, e.g., a life interest is terminated and the remainderman enters into possession of the land) and the presumed-dead person then turns up alive and kicking, that person "may bring an action for damages or another remedy for any loss suffered". In such a case "the court may make such order as appears to it to be just and equitable in the circumstances", which could be for the revival of the life estate and the return of the land, or for the payment of compensation by the remainderman (but he gets to keep the land) or indeed anything else.

That only applies to life estates, and the like, but I think it points the way to a more general solution of this problem. The circumstances in which someobody is presumed dead and his estate is dissipated but he then turns up alive are pretty bizarre, and genuine cases are rare. In some such cases the person concerned has chosen to disappear or, having disappeared, has chosen not to reappear for a long time, and it hardly seems just that the cost and confusion resulting from all this should all be borne by his family, or by people who dealt in good faith with his family and knew nothing at all of this man or his disappearance. On the other hand it hardly seems just that he himself should be beggared. So it seems to me that a flexible power for the courts to make orders with respect to property matters is probably a good public policy. Right now we only have that in relation to land held on trust, under a life estate, etc but, if we were to legislate on this matter, that looks to me like the way to go.

BoatMad

Marcusm wrote: »

Why not; it's generally an exception to the nemo dat rule except that, in this case, the position would be stronger as there would be a court declaration of death.

your saying the transfer of assets on the basis of " proclaimed death " is exempted from the nemo dat rule ?

Marcusm

BoatMad wrote: »

your saying the transfer of assets on the basis of " proclaimed death " is exempted from the nemo dat rule ?

No, the purchase by a bona fide purchaser for value without notice, ie any on sale.

Samuel T. Cogley

Would the statute of limitations be an issue with the OP's time scales and Peregrinus' suggestion?

NUTLEY BOY

Marcusm wrote: »

No, the purchase by a bona fide purchaser for value without notice, ie any on sale.

Would that purchaser be one of equity's darlings ?

NUTLEY BOY

Peregrinus wrote: »

Succession Act 1965 s. 49 is the provision that says that legal personal representatives are to distribute the assets in a deceased estate to those entitled. S. 49(3) provides that "nothing in this section shall prejudice the right of any creditor or claimant to follow any such assets into the hands of any person who may have received them".

If I were Tom, returned from the dead, that's the one I'd hang my hat on. I'd lay claim to my assets and say, right, I'm a claimant, s. 49(3) preserves my rights, I have a better claim to the assets that the people who received them on foot of a now-rebutted presumption of my death, I'll have them back, please.

The per reps, I think, are out of the picture at this point. If Tom is bringing court proceedings, he brings them against the people actually holding the assets now.

Bit of a problem if the beneficiaries have already sold/consumed the assets. I don't think Tom could follow the assets into the hands of a bona fide purchaser for value; instead he'd look for some form of redress/compensation in the form of an award of damages against the heirs who sold/consumed the assets.

So, would Tom trace for value as distinct from title ?

Losty Dublin

You could do what Reginald Perrin did and marry his widow after his faked death, thus regaining all of his former assets once more. Legally this would be less complex

goz83

Is not the answer here?

hungry hypno toad

Losty Dublin wrote: »

You could do what Reginald Perrin did and marry his widow after his faked death, thus regaining all of his former assets once more. Legally this would be less complex

Is Sunshine Desserts still trading?

Samuel T. Cogley

NUTLEY BOY wrote: »

Would that purchaser be one of equity's darlings ?

BPFFV is the same thing and ED AFAIK.

I'm not sure if I could get any more abbreviations in there YMMV.

Losty Dublin

hungry hypno toad wrote: »

Is Sunshine Desserts still trading?

Yep. CJ JR is their MD.