The return of a man who has been missing for five years following an apparent canoeing tragedy will face complications in reclaiming their assets and identity according to legal experts from National law firm Irwin Mitchell.
John Darwin (57), a former teacher and police officer had been formally declared dead by a coroner has now been found to be alive after he walker into a police station just weeks after his wife had sold their two properties and moved to Panama.
Adam Draper, an Associate at law firm Irwin Mitchell commented: "When a person dies their estate is distributed in accordance with the terms of their will. If there is no will, then the Rules of Intestacy apply. It is usually the case that a husband or wife leaves a will appointing their surviving spouse as Executor and beneficiary.
"In those circumstances Mrs Darwin would have had to have applied to the Probate Registry for the issue of a grant of probate. Once the grant has been issued she would have been able to distribute all the assets owned by John Darwin to herself."
It is often the case that certain assets are owned jointly (for example property or bank accounts) in those circumstances the rule of survivorship applies and those assets pass automatically without the need for a grant of probate. Insurance policies also often fall outside of the estate.
It would appear that Mr Darwin's life insurance was written in trust for Mrs Darwin who took the proceeds on the production of the death certificate.
Mr Draper continued: "In order to reclaim his assets Mr Darwin will need to apply for the revocation of his death certificate and thereafter revocation of the grant of probate. He will then need to issue proceedings for recovery of the assets transferred to Mrs Darwin under the rules of survivorship or through the grant. The insurance company will have a separate claim for recovery of the insurance proceeds wrongly paid out.
"Mr Darwin will also need to take steps to reconstruct his own identity, for example applying for a new passport, national insurance number, driving licence etc."