An estate trustee has a duty to locate and notify all of the beneficiaries of an estate. But what happens when a beneficiary has lost touch with their family, or is missing and has not been heard from in years?
It is not uncommon for a person to prepare their will a number of years prior to their death and it is possible that in the intervening years, family members move away or completely lose touch with each other. Additionally, a person who dies without a will may have estranged children or distant family members who are now entitled to a share of their estate.
Circumstances like these present a difficult challenge for the estate trustee who must somehow locate and contact this person or persons in order to complete the distribution of the estate. And what happens when despite best efforts, one or more of the beneficiaries cannot be located?
The Absentees Act
Estate trustees in Ontario who find themselves in this situation may wish to make a court application under the Absentees Act, RSO 1990, C. A.3. This statute can help facilitate distribution where a beneficiary who used to reside in Ontario cannot be found. The objective of the Absentees Act is to ensure that the estate of an absentee can be administered and is not left to waste.
An absentee is a person who:
- usually resided or domiciled in Ontario;
- has disappeared and whose whereabouts are unknown; and
- there is no knowledge as to whether he or she is alive or dead.
Efforts to locate the Absentee
A judge of the Superior Court of Justice may declare a person to be an absentee if it can be shown that “due and satisfactory” inquiry has been made to locate the person or determine their current whereabouts. It is not clear to what lengths an estate trustee must go to in order to satisfy the Court that the person cannot be located, but it is likely a determination that would be made in all of the circumstances of that particular case.
At a minimum, an estate trustee should expect to make inquiries of all people who could have knowledge of the person’s whereabouts or fate. It is likely that a Court would also require that an estate trustee retain a professional to conduct a private investigation or search, to try and locate the missing person. The Court may also direct that further inquiries or steps must be taken before declaring that a person is an Absentee.
Appointing a Committee for an Absentee
Of particular assistance to an estate trustee in this situation are sections 4 & 5 of the Absentees Act, which set out that the Court may make an order appointing a “Committee” for the custody, care and management of the property of an Absentee and permits the appointment of an individual, a trust corporation, or both for this role.
A person or trust company that is appointed as the Committee for an Absentee is a fiduciary and has the same duties as a person appointed as guardian for property under the Substitute Decisions Act, SO 1992, c 32.
Depending on the size of the bequest or entitlement that the Absentee is to receive, an estate trustee may wish to make inquiries of a trust company or responsible family member to fulfil this role. The estate trustee may also seek to be appointed as the Committee, if he or she is willing to act.
The appointment of a Committee for a missing beneficiary ensures that the administration of the estate can still proceed, with the Absentee’s share held in trust until that person can be located. When making an application for an order appointing a Commitee, an estate trustee may wish to seek further advice from the court with respect to how long the property should be held and what should be done if the person still cannot be located in the future.
If there is no one willing or able to hold the Absentee’s share of the estate in trust, the Committee may request an order allowing payment of those funds to the Accountant for the Superior Court (colloquially known as payment into court). The Ontario government would then hold the Absentee’s share of the estate usually until either the Absentee applies for the funds, or a further court order is made.
The Declarations of Death Act
If the estate trustee believes that the missing beneficiary may in fact be dead, or has no reason to believe that person is alive, she may also seek a declaration of death under the Declarations of Death Act, SO 2002, C 14.
When a declaration can be made
Where a person has disappeared in suspicious circumstances, a declaration of death may be made if:
- the individual has disappeared in circumstances of peril;
- the applicant has not heard of or from the individual since the disappearance;
- to the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance;
- the applicant has no reason to believe the individual is alive; and
- there is sufficient evidence to find that the individual is dead.
An estate trustee may also seek a declaration of death where the person has been absent for at least seven years, has not been heard of or from during that period, she has no reason to believe that person alive and there is sufficient evidence to find that the person is dead.
Sufficient evidence of death
Persuading the Court to make a declaration of death is a significantly more onerous task than obtaining order that a person is an Absentee. In fact, if the Court is not satisfied that there is sufficient evidence that an individual is dead, the judge hearing the application may instead make an order under the Absentees Act, if that is requested.
In Kamboj v Kamboj, the Court found that the mere act of abandoning a vehicle and discarding a jacket and hat by the river was not sufficient evidence to conclude that the missing person committed suicide. Notwithstanding the applicants’ evidence and a police report confirming suicide, the applicants were ordered to make further inquires to find more proof regarding the fate of the missing person.
What if the person turns up alive?
Section 6(1) of the Declarations of Death Act offers some protection for estate trustees and other beneficiaries in the event that the missing person is in fact found alive. If after the Court makes a declaration of death and the estate trustee has distributed the estate accordingly, the individual turns up alive, he or she is not entitled to recover the distributed property.
However, this is not a hard and fast rule. The Court also has the power to order that a person to whom property was distributed return the property to the individual, or pay a specified amount of money to him or her. The Court may make this order if it considers it just in the circumstances, but may also consider the inconvenience or hardship to the person who must return the property.
While the Absentee Act and the Declarations of Death Act can be of assistance to estate trustees, where a person is missing but there is no evidence of death, an estate trustee may be forced to hold that person’s share in limbo – either indefinitely, or until she can persuade a court otherwise.
Circumstances like these demonstrate once again that being an estate trustee is by no means an easy task – and can sometimes feel like search for a needle in a haystack.
If you are an estate trustee or family member who finds themselves in circumstances like these, or you are looking for guidance on other estate litigation matters, contact the estate litigation lawyers at Eisen Law in Toronto to find out how we can help. Call us at 416-591-9997 or contact us online.
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