Absenteeism and estate administration
By Ian Hull
In a blog posted earlier last week concerning the Declaration of Death Act, part of the blog discussed certain peculiarities in declaring someone dead.
In certain instances, where it is not certain that the individual is deceased, the Absentee Act, RSO 1990, c A. 3 (the “Act”) allows the court to make a declaration that an individual is an absentee.
In the case of Re Taylor (1925), 27 O.W.N. 497,  O.J. No. 541, Riddell J., notes at paragraph 5 that the Act was spurred as a result of, “…[t]he disappearance recently in Toronto of a man of considerable wealth brought to the attention of the Legislature the necessity of administering the estates of those who should disappear”. In addition, at paragraph 6, Riddell J. states that, “[t]he object of the Act plainly is that the estate of any one who should absent himself, in such a way that his whereabouts are unknown and that there is no knowledge as to whether he is alive or dead, should be administered and not left to waste.”
Clearly, the purpose and objective of the Act has hints of public policy.
According to section 2(2) of the Act, an application can be made by: (1) the Attorney General; (2) any one or more of the next of kin of the alleged absentee; (3) the person to whom the alleged absentee is married; (4) the person with whom the alleged absentee was living in a conjugal relationship outside marriage immediately before the absentee’s disappearance; (5) a creditor; or (6) any other person.
Upon ascertaining who is able to bring an application, The Honourable Mr. Justice J.W. Quinn in the Ontario Superior Court of Justice case of Kamboj v. Kamboj lays out three requirements that must be met in order to be found as an ‘absentee’ under the Act. Echoing section 1 of the Act, the three requirements include:
a. the person must have resided, or been domiciled, in Ontario;
b. the person must have disappeared, with his or her whereabouts now unknown; and
c. there must be no knowledge as to whether the person is alive or dead.
If these requirements are met, section 2(1) of the Act states that the court is able to make a declaration that a person is an absentee, “…if it is shown that due and satisfactory inquiry has been made, or may direct such further inquiry to be made and proceedings to be taken as the court considers expedient before making any order”.
Whether an applicant has made a due and satisfactory inquiry is determined on a case by case basis.
Upon the court making a declaration under the Act, the Act is quiet on what happens with the absentee’s property if they all of a sudden reappear. It will be interesting to see how the courts grapple with such an issue, provided it arises.
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