View Full Version : The law and the Undead, a legal GQ
09-15-2000, 05:57 PM
OK, here's my question: A guy with a large estate, let's call him John Q. Astor, goes up in a private plane over the Pacific. Contact is lost when he's about a 1000 miles from shore in any direction. After dilligent searching, he is legally pronounced dead and his will is executed. His beneficiaries all become rich. After a few years, John Q. Astor returns to his ancestral home to find his firstborn ruling the roost. He finds that his will has been executed too soon, and now he's present to prove it. What recourse does he have? Is the will thrown back into probate and somehow nullified? Keep in mind: The Astors like being rich. None of his family is willing to 'give up' without a fight. This leaves John Q. Astor out in the cold because nobody will share a damn thing with him. So, can Johnny-boy get anything back? Most of his patrimony has either been spent or invested. Some of his things have been sold. What now?
09-15-2000, 09:12 PM
I think the answer depends on which state's law will apply. Most states have statutes dealing with such situations.
New Jersey law provides that
If an estate or property has been received, recovered or taken into possession by any person by reason of a declaration of death . . . and in any action or proceeding it is thereafter proved that the person declared dead was alive at the time of the receipt, recovery or taking into possession, the estate or property, or its reasonable value at that time shall, except as otherwise provided by law, be restored to the person deprived thereof by reason of the declaration . . . .
No doubt there are exceptions to the rule, and of course,
Standard disclaimers about legal advice apply :)
09-16-2000, 07:24 AM
Just to follow up on my last post, I gather the way it would work (in New Jersey) is that the heirs would have to give back their inheritances (probably with interest).
If property has been sold, the heirs would be on the hook for the "reasonable value" of the same. Note that innocent third parties would be in the clear. i.e., if you innocently bought inherited property from one of the heirs before Astor came back, you'd prolly get to keep it.
I wouldn't be surprised if I found out that the "absentee" statutes in other jurisdictions were different from that of New Jersey. This is one reason why lawyers spend so much time fighting over procedural issues, like whose laws should apply to a dispute.
09-16-2000, 08:06 AM
I think the situation posed could not arise. If a person is missing, but not shown to be dead, death will be presumed after a period of time. In most states (I believe), this period is 7 years. In any event, it is a matter of years before the person can be deemed deceased.
09-16-2000, 08:41 AM
I think you may be right about the period of years, barbitu8 - I was assuming that all the proper steps had been taken to have Astor presumed dead, including waiting for the appropriate time period.
09-16-2000, 11:58 AM
barbitu8, people have been lost for longer than seven years. I can picture more than one way that could happen, myself. Perhaps Mr. Astor was, instead of over the Pacific, over the Congo Basin. You can get lost, captured, even killed very easily there and no word could come from those who might know for a lot longer than seven years, especially if there's a war going on. So don't regard my question as invalid simply on those grounds.
09-16-2000, 12:44 PM
Mr. Astor's nephew, Paininthe, is a poor man with poor gambling skills. He burned through his hundred grand portion of the estate fairly quickly and is back at his barely-getting-by level when the Beneficiary Previously Known as Dead returns. What now? Is Paininthe in debt for the hundred K? Does he have to declare bankruptcy? Can't really expect an answer without knowing the jurisdiction, etc., but this thread made me curious. Sucks to be Paininthe, no?
09-17-2000, 03:33 PM
Originally posted by Derleth
OK, here's my question: A guy with a large estate, let's call him John Q. Astor, goes up in a private plane over the Pacific. Contact is lost when he's about a 1000 miles from shore in any direction. After dilligent searching, he is legally pronounced dead and his will is executed.
I read this as meaning (with "after diligent searching) that only a short period of time elapsed. Sure, the situation could arise, but as the facts were presented, it was impossible.
09-17-2000, 07:45 PM
And what about the widow Astor? In the years following the loss of her husband, she found comfort in the arms of the family butler, Charles Buttlesworth. After John was declared dead, Mary Astor married Charles and became Mrs. Buttlesworth. All looked happy for the couple until that dark and stormy night when the veranda doors crashed open and John Q. walked in on them and said "I'll thank you, Buttlesworth, to take your hands off my wife."
So how does the story come out? Is Mary still married to John? Or Charles? Or both? And what about Fifi, the buxom French chambermaid who secretly loves Sven the gardener?
09-18-2000, 06:19 AM
Why was the person missing for 7 years? Was he held prisoner or stranded on a deserted island? If he voluntarily kept hidden for 7 years, there would be estoppel, preventing him from enforcing any law granting him return of all his assets. Every one is presumed to know the law. One who secretes himself for 7 years knows he will be declared dead and must suffer the consequences if any person changes his position upon his being declared dead.
09-18-2000, 07:43 AM
I gather the way it would work (in New Jersey) is that the heirs would have to give back their inheritances (probably with interest).Whoa, wait a second. What if Mr. Astor owns a considerable amount of stock in a company whose value plummets after the will is executed? When he returns, are the heirs now suddenly responsible for making up the difference? Or does the "reasonable value" wording somehow nullify that possibility?
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