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Prudence

Legal help required

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Prudence

Hi, this is my first post and i'm not even sure it's in the right place. My apologies if i've got it wrong!

I'm writing a book (set in the UK) and in the interests of historical accuracy i would like to know the following:

1. If a married soldier went missing in battle and his body wasn't found, what happened to his estate? If he had left a will leaving everything to his wife, would she inherit immediately?

2. If the soldier did not appear after the war, would his wife be allowed to marry again? And if so, how long had to lapse before she could?

3. If the soldier appeared later, say in 1920, what would then happen? In the book i'm writing this soldier wants nothing more to do with his wife and, at the end of the book, disappears. She doesn't know where he's gone.

4. If a soldier went missing in battle, how would the telegramme his wife received be worded? I have an idea that it was 'missing in action presumed killed' but i'm not sure about this.

I would be very grateful for any information on the above questions. Thanking you in anticipation.

Prue

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peterhogg

I can take a stab at a couple of questions:

1. Disappearance of Spouse: In the UK there would have been legislation governing situations where a spouse may be presumed dead after the passage of a certain period of time or some particular circumstances. The equivalent would be now known as the Presumption of Death Act. It might have borne the same name at that time. The easiest way to research that point is to do a search of British Statutes. There would be consolidated indexes so it is relatively easy to find what version of the act applied at that time. It is likely a fairly short statute. Find the provision in the applicable statute--for some reason 7 years rings a bell where the spouse has disappeared. i may be wrong. You can then do a search of case law that considered that provision. (Statutes Judicially considered) There is every likelihood this issue would have come up.

Look at Court of Appeal decisions (the ER reports or App. cases) or House of Lords rulings. They set out the facts and the applicable law. all such rulings are recorded and accessible. You can search through referring to the statute and the particular provisions to see when they have been judicially considered.

2. Wills and Estates: this issue will flow from the former. there have been many changes in the last 90 years with respect to issues of wills and spouses so again it is important to consider the appropriate Wills and Estates provision. There would likely be a Dower Act, for example too.

Obviously no will may be executed without proof of death. The Insurance Act would also contain some clue as to proof of death in the case of a disappearance. Also, the Wills and Estates Act would govern to a degree what happens to certain types of property. also the issue of what happens when death is presumed and there is not will (ie intestate).

good luck

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peterhogg

Sorry, meant to add also: Check Halsbury's Laws of England too.

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dycer

Prue,

Would certainly support the seven year rule.

For example my Uncle was killed in action on 22 March 1918,per a Newspaper report from one of his Officer's,but has no known grave.He was unmarried and his estate was settled on 21 November 1925,the beneficiaries being his Brother and Sisters.

Should stress he was a Scot and his Estate was settled in Scotland,and there are no records available giving the process that was undertaken to resolve the Estate.The total of the Estate was £84-00 and it required the services of a Solicitor to resolve.

G

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dfaulder

Can I ask an "obvious" question?

If someone was posted missing, a stage would come where the army might presume him dead. My belief is that in that situation a (UK overseas) death certificate would be issued. When a death certificate is issued, the person concerned is considered (barring contradictory evidence) to be dead, and the executors should be able to obtain probate and the widow could remarry.

So, in your prospective book, has a death certificate been issued?

David

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Prudence

Many thanks Connor and Dycer. There is obviously a lot more research for me to do!

In response to your question, David. No, I haven't written anything about death certificates.

While i know quite a lot about the First World War in general, i am woefully uniformed about many details such as what happened when soldiers were killed.

To put it crudely, there was no problem if there was an identifiable body. But many bodies were, for whatever reason, lacking in any form of identification. Additionally there were many who were never recovered. I read recently that even now, some 20 to 30 bodies, or remains thereof, are discovered annually.

I assume that after a battle such as that of Arras in 1917, there was some sort of record of who was at the front and who would therefore have gone into that battle. It would become obvious after the battle who was still alive. Those bodies with tags, papers etc could be identified but that probably left a lot of casualties unaccounted for.

At what point does someone make the decision that the soldier, who is missing, is dead? I would think that after a battle anyone who is missing is probably dead - not necessarily but the probability is high.

I have absolutely no idea what the British Army would then have done regards contacting the families concerned. I hadn't even thought of death certificates! Would these have been issued by the British in France? Or by the French? I assume this information is available somewhere. But perhaps these questions rightfully belong elsewhere on this forum?

This is fascinating but proving much more complex than I realised when I first started! Many thanks, David, for asking the question.

Prue

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dfaulder
>><<

In response to your question, David. No, I haven't written anything about death certificates.

While i know quite a lot about the First World War in general, i am woefully uniformed about many details such as what happened when soldiers were killed.

Prue

The situation does not seem overly clear. An example:

My Grandfather was killed in action 26 April 1918 and the body was not recovered; however he was declared dead on the day. Staff at the Imperial War Museum have told me that it was unusual for someone to be declared dead on the day if the body had not been recovered; normal practise would have been to declare the person missing.

I can only presume that:

  • There were "adequate" witnesses to his death (I know of one)
  • His body could be seen afterwards lying in no man's land - possibly they may have seen it destroyed by shellfire (I do not know how else they could be sure he was dead)
A British Death Certificate was issued - modern copy below.

post-22880-1259502928.jpg

This enabled probate to be obtained and the estate to be administered.

HTH

David

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DaveBrigg

I know of three examples where the issue of men missing in action was resolved. In one case, the officer's father visited wounded men from his son's company, one of whom made a statement from hospital confirming that he saw the man dead on the battlefield.

In a second case of an officer who went missing in 1917 near Paschendaele, death was confirmed after the war by a returning POW.

post-7552-1259544314.jpg

Another officer, was last seen alive when his trench was overrun in May 1918. His parents refused to believe he was killed, and so he was kept on the list of 'missing'. They wrote after he war asking the MOD to investigate reports of prisoners still working in mines in Eastern Europe.

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DaveBrigg

see above

post-7552-1259544441.jpg

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Prudence

Many thanks for your information David and Dave. Seeing the documents is so very useful! So thank you both for adding those. I really appreciate seeing them.

Since I last visited here i've been doing some more research.

It seems that there would first be notification that someone was missing. This would then be followed by one presuming death after 3 years had lapsed - that is during war time.

Dycer and Connor are correct in the 7 year wait - but this appears, as far as I can find out, to be in peace time.

Unless, of course, someone has seen a person killed or seen their body in no-man's land.

What i intend doing tomorrow is going to the public library to see if i can start to track down the legal rulings on these details. They must exist somewhere!

Once again, many thanks to all of you for your help.

Prue

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peterhogg

Dear Prue,

I would expect there will be reported judgements dealing with situations where a spouse has disappeared and where there may be an absence of evidence concerning how the spouse met his Maker. One useful set of reported cases will be the All E.R.s or All English Reports; there are of course many others too. I am sure these can be accessed on-line as opposed to going to a law library. if you search for key words such as "presumption of death" lists of cases will come up. They will be cited by the names of the parties. A case citation for a reported case will include parties names, year, volume for that year and a page number. For example [1945] 1 All E.R. 183 means volume one of the series for 1945, page 183. App.Cas means Appeal cases.

Here are a couple of cases bordering your time period dealing with the presumption of death after being unheard from for seven years: (note that the presumption of death after 7 years rule in common law does not include a presumption as to the actual date in that 7 years the person died)

Prudential Co. v. Edmonds (1877) 2 App.Cas. 487, at 509 (page 509)

Chipchase v. Chipchase [1939] 3 All E.R. 895

In Probate Division though the presumption is a matter of fact and now law; so here are a couple of Probate Judgements;

Re Matthews [1898] P. 17

Re Aldersey [1905] 2 Ch. 181

Judgements will contain a headnote or summary so you can do a quick scan first and the body judgement will usually contain a recitation of the relevant facts (these can sometimes be quite interesting, particularly when well written and might serve as a bit of a source of inspiration for your story), history of the proceeding and an application of the relevant legal principles. Initial searches can yield a vast number of reported authorities but it does not take long to recognize the specific key words, known as "words and phrases" to quickly cull the irrelevant authorities. Also you will likely be narrowing your search to the war and post-war period. Another way of searching is to identify the appropriate statute that covers the time period and the relevant statutory provision and do a "judicially considered" search which will identify authorities that considered the provision. Again, you may find a number of irrelevant cases but after a while the search narrows.

You might also wish to search the DLRs or Dominion Law Reports on-line. These are Canadian reported cases but for that same time period will likely include British cases and similar issues with respect to proving a missing spouse is dead are bound to have arisen. Again, like all legal reports, you can search by inserting a range of years and key words in your search.

Good luck

peter

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dfaulder

Prue,

You may also find it useful to look at histories of those who went missing during WW1. Jack Kipling comes to mind; I think he was posted missing at Loos and was later declared dead by the army, I believe before a body was found.

David

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John_Hartley

During the war, presumption of death in the case of someone missing would be made by the war office. It would take varying lengths of time. For example, my research into the 6th Manchesters suggest that decisions were made about Gallipoli casualties within a few weeks of the withdrawal. However, it seems that 12 months is the usual rule of thumb - it allows for all usual other possibilities to be eliminated. A death certificate is then issued, allowing a man's estate to be settled and, of course, his widow to remarry.

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Andrew Hesketh

Just a minor comment compared to the detailed one's above, but John's suggestion about 12 months being relatively standard is something that I too have encountered in research into Notts & Derby casualties. For example the many Territorials that were 'missing' after Gommecourt on 1 July 1916 received newly issued regimental numbers in March/April 1917 based on the fact that they were not yet officially dead even though they virtually all were subsequently declared to be so.

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Prudence

Thanks Peter, David, John and Andrew!

Lots to think about there. I need to hold back from getting involved with too much detailed research - i find it fascinating but it takes up so much time! :)

I find it difficult to appreciate just how things were in France. After a huge battle such as that of the Somme there must have been a lot of confusion, especially with so many casualties.

How the army kept track of anyone is something beyond my comprehension!

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John_Hartley
After a huge battle such as that of the Somme there must have been a lot of confusion, especially with so many casualties.

How the army kept track of anyone is something beyond my comprehension!

Certainly true about some confusion - some of which still rears its head today. You'll often read the war diary entry for a battalion written immediately after an attack and it will give numbers of dead, wounded and missing. The missing can be quite high but, of course, this will include men who were wounded, or separated from thier unit and who return over the coming days - it is not a final conclusion that these men are dead and their bodies not recovered.

Generally speaking , the army (like most public bodies) was quite good at the "admin". A battalion HQ would know the names of their soldiers and, therefore, it was quite easy after an attack to know who had not returned. However, sometimes the admin didnt keep pace with events - for example I know of a large batch of soldiers arrived in France around JUne 1916 destined for the 6th Cheshires. However, many of them were reallocated to other battalions and regiments. In a not inconsiderable number of cases, men were killed and their records show them to still be with the 6th Battalion, even though their date of death and place of burial confirms they were not.

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Peridot
Certainly true about some confusion - some of which still rears its head today. You'll often read the war diary entry for a battalion written immediately after an attack and it will give numbers of dead, wounded and missing. The missing can be quite high but, of course, this will include men who were wounded, or separated from thier unit and who return over the coming days - it is not a final conclusion that these men are dead and their bodies not recovered.

Generally speaking , the army (like most public bodies) was quite good at the "admin". A battalion HQ would know the names of their soldiers and, therefore, it was quite easy after an attack to know who had not returned. However, sometimes the admin didnt keep pace with events - for example I know of a large batch of soldiers arrived in France around JUne 1916 destined for the 6th Cheshires. However, many of them were reallocated to other battalions and regiments. In a not inconsiderable number of cases, men were killed and their records show them to still be with the 6th Battalion, even though their date of death and place of burial confirms they were not.

It is not easy even today to persuade the courts that a presumption of death should exist. As a retired legal practitioner I was once involved in a case where an english woman sought a divorce from an I

raqi who was alleged to have lost his life in the war with Iran and who had not been heard of seen for 7 years.

Cutting a long story short the courts bent over backwards for the divorce not to proceed on the basis of a presumption of death and wanted the decree to proceed on the basis of 5 years seperation with wife being placed in the situation of having to prove service of the papers on her husband.

Thankfully common sense eventually prevailed and the cout was quite lenient in granting an order for substituted service and the decree was eventually made.

Peridot

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joseph

I would look at the way the Army went about the process of 'Casualties' first, Kings Regulations and Field Service Regulations Part II would give you a good grounding. The Pay Warrant, Army Council Instructions and Army Orders have detailed information.

The Army had its own laws and the War Office dealt as appropriate.

Regards Charles

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