The common law rule regarding the presumption of death provides where there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more. However in Manitoba’s Presumption of Death Act, there is nothing in the statute specifying that a person must be missing or absent for a specified period of time before an applicant can seek an order declaring the missing person to be presumed dead.
Manitoba’s Act specifies that, in the case of an order declaring someone presumed dead for all purposes, the court will not make this order unless the applicant has first published an advertisement in a general circulation newspaper for the area in which the missing person was last known to reside, stating that an application has been made to the court to declare that person presumed dead. No time limit for the running of the advertisement is provided by the Act.
The court may make an order declaring that the person shall be presumed to be dead for all purposes, or for such purposes only as are specified in the order.
Once the order has been made, the order, or a certified copy of the order, constitutes proof of death for the purposes for which the order has been made, except in the case of life insurance policy, in which case the rules regarding presumption of death found in Part V of the in the Insurance Act apply.
APPENDIX A – MANITOBA’S PRESUMPTION OF DEATH ACT / The Presumption of Death Act, C.C.S.M. P120
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Definition
1. In this Act “court” means the Court of Queen’s Bench.
Order for presumption of death
2(1) Upon application if the court is satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named;
(b) the applicant has no reason to believe that the person is living; and
(c) reasonable grounds exist for supposing that the person is dead;
the court may make an order declaring that the person shall be presumed to be dead for all purposes, or for such purposes only as are specified in the order.
Date of presumed death
2(2) The order shall state the date on which the person is presumed to have died or the date after which the person is presumed not to be living.
Notice of application
2(3) An order shall not be made under this Act unless:
(a) in the case of an order declaring that a person shall be presumed dead for all purposes, notice of the application has been given by publication of an advertisement in a newspaper having general circulation in the area in which the person was last known to reside, and in such other manner and to such persons as the court to which the application is made may direct; and
(b) in the case of any other order, notice of the application has been given in such manner and to such persons as the court to which the application is made may direct.
Certified copy of order as evidence
3(1) Subject to subsection (2), an order, or a certified copy thereof, declaring that a person is presumed dead for all purposes is proof of death in all matters requiring proof of death; and, subject to subsection
(2), an order, or a certified copy thereof, declaring that a person is presumed dead for the purposes specified in the order is proof of death in all matters requiring proof of death which relate to those purposes.
Exception for life insurance
3(2) An order made under this Act is not proof, for the purpose of a policy of insurance to which Part V of The Insurance Act applies, of the death of the person whose life is insured under the policy of insurance.
http://www.manitobalawreform.ca/pubs/pdf/additional/consultation_death_act.pdf
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