The Magnitsky Clause Part 1: Profiting from the suppression of whistleblowers – what does it mean for business?
Growing up in the 1980s, I remember a favourite book titled something like The World’s Greatest Unsolved Mysteries. It covered about 30 or so cold cases, gloried in pictures and was of course full of question marks. This was the first place I read about the Lord Lucan case. Nearly 30 years have passed since I was a ten year old first reading about this, but only today, on 3 February 2016, over 41 years after the peer vanished, has the law permitted Lord Lucan's son George Bingham to obtain a ‘death’ certificate for him.
Why so long? Well, until 1 October 2014 when the Presumption of Death Act 2013 (the Act) came into force, if someone disappeared it could be difficult or impossible to obtain a death certificate. For example, Rachel Elias, sister of Manic Street Preachers lyricist and guitarist Richey Edwards, spent 13 years struggling to register her brother's death, the procedure for the registration itself having taken over three years.
Without a death certificate, a person is generally assumed to be alive. This obviously presents great problems for ownership and control of the missing person's property, neither of which change as a result of a disappearance. Furthermore, before the Act, different procedures had to be followed to: (i) obtain a Grant to gain access to the property and (ii) end a marriage or civil partnership.
This situation has greatly improved since the coming into force of the Act: a court declaration of presumed death is conclusive against all persons and for all purposes, including the acquisition of interests in any property and the ending of marriages or civil partnerships. In the Lord Lucan case, although a Grant had been obtained in 1999, this did not permit Mr Bingham to inherit the family title or take his father’s seat in the House of Lords. Hence Mr Bingham’s application under the Act to obtain a declaration which is binding for all purposes. In other words, as close to ‘closure’ as he could hope for.
After seven years of disappearance, on application by spouses, certain relatives or persons with sufficient interest, the court has a wide range of powers, including:
Should the missing person reappear, the court can make a variation of the declaration, but missing people beware: this will only be made in exceptional circumstances if the reappearance occurs more than five years after the declaration. Accordingly, the court also has powers to:
So, whilst we may never know what happened on that fateful night in 1974 when Lord Lucan disappeared, at least we now have this pragmatic Act to plug long-standing estate administration gaps in cases like his.
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