Missing Person Presumed Dead: The Anomalies in the Malaysian Law of Presumption of Death

Abstract

In Malaysia, a dead corpse, physical body, or corpus must be shown as proof in order for a person to be deemed legally dead. The issue arises in situations in which a person has been reported missing and the whereabouts of that person are unknown to those who are close to them. As there is no physical body to support the assertion that the missing person is dead, this conclusion cannot be reached. In order to properly recognise the passing of a person, the presumption of death, which is a legal theory based on common law, was applied. However, there is no explicit regulation that addresses whether or not a missing person should be deemed to be dead after a specified amount of time has passed. The laws are difficult to follow since they are dispersed throughout several clauses of separate legislation. This has caused difficulty for the family members of those who have gone missing. In pursuant thereto, this article examines the existing legislation in Malaysia that governs the presumption of death and determines the anomalies that exist in the various sets of laws. This article utilised qualitative legal research and a doctrinal legal analysis to examine the applicable legislation, reported cases, and other legal and non-legal literatures. This article indicates that there are several anomalies or irregularities in the present legal system, including the lack of a definition for missing person, the question of which jurisdiction should be applied, the length of time to wait, and the administration of the matters relating to missing persons. In order to explain the legal uncertainties, the inconsistencies necessitate an upgrade to the present legal system in Malaysia.