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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tolley v No Defendant (Re Caroline Fisher) [2023] EWHC 979 (Ch) (28 April 2023) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/979.html Cite as: [2023] EWHC 979 (Ch), [2023] WLR(D) 206, [2023] WLR 2294, [2023] WTLR 1187, [2023] 1 WLR 2294 |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
KERRY TOLLEY |
Claimant |
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- and - |
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NO DEFENDANT RE CAROLINE FISHER |
Defendant |
____________________
There was no other attendance or representation
Hearing date: 24 April 2023
____________________
Crown Copyright ©
HHJ Paul Matthews :
Introduction
The law
"(1) This section applies where a person who is missing
(a) is thought to have died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.
[ ]
(5) The court must refuse to hear an application under this section if
(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and
(b) the court considers that the applicant does not have a sufficient interest in the determination of the application."
"(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person
(a) has died, or
(b) has not been known to be alive for a period of at least 7 years."
This case
Discussion
"the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates".
The test there is formulated in terms very similar to that in the 2013 Act. And there are a great many cases using and explaining this test. However, as is well known, in construing a statute, context is all important: see eg Argentum Exploration Ltd v The Silver [2023] 2 WLR 209, [92], per Popplewell LJ.
"I grant that every child shall be his father's heir, after his father's day".
This was calculated to enhance his acceptability to the people, or at any rate to minimise opposition.
Conclusion