Why there is a need to apply for declaration of death/presumption of death?
One of the purpose of such declaration of death/presumption of death is to facilitate the administration of estate of a person who went missing and but the body cannot be found. This problem may be encountered by the family of those who have went missing during the tsunami in 2004 or during aircraft disaster.
It must be highlighted that a death certificate is required in any application for grant of representation because it is important for the next of kin to show the proof of death.
However in situation where a person have went missing but the body cannot be found the National Registration Department (Jabatan Pendaftaran Negara) will not issue any death certificate because Section 18 of the Births and Death Registration Act 1957 requires the dead body to be found in order for a death to be registered. Please see the explanation provided by the National Registration Department here.
In order to administer the estate of such person the next of kin will have to apply for a declaration of death from the High Court and to use this declaration as the proof of death.
The basis of such declaration is found in Section 108 Evidence Act 1950 which reads as follows:
“ when the question whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive , the burden of proving that he is alive is shifted to the person who affirms”
Section 108 Evidence Act 1950 also commonly known as the presumption of death in a simplistic view it means a person can be presume to be dead if he has not been heard of for 7 years by those who would have naturally heard of him if he had been alive.
Hence the person who would naturally hears from the missing person will have to make the application for declaration of death.
Application is by way filing the relevant cause papers in the High Court:
- Ex Parte Originating Summons;
- Affidavit in Support outlining the facts upon which the application is based.
Upon the court being satisfied that Section 108 Evidence Act 1950 has been complied with the Court will grant order in terms as per the Ex Parte Originating Summons.
With the declaration of death the next of kin of the missing person which is now presumed to be dead can apply for the appropriate grant of representation from the Court.