Sometimes a person who has been legally declared dead is not dead.
In a remarkably rare turnabout, a Canadian insurer successfully convinced Quebec Superior Court to annul a judicial declaration of death of a Montreal man who disappeared in 2008 after reliable signs of life were uncovered, freeing it of its obligation to pay $500,000 in life insurance.
“There is not much that has been written about such cases because they are exceptional,” noted Josianne Gelfusa, a Montreal notary with D & G Notaries, who co-wrote a chapter on absence and death for the book Droit des personnes physiques (Law of natural persons). “So there is not much case law to assist judges.”
Hooshang Imanpoorsaid left for a business trip to Toronto in February 2008, and never returned. Nearly a decade later, in December 2017, Quebec Superior Justice Yves Poirier issued a judgment declaring the 58-year old Iranian native dead, based on the record before him at the time.
The investment and insurance representative was in financial straits, evidence revealed. He owed monies to financial institutions and to people and groups belonging to the underworld. He emptied the family bank accounts, depleted all the family’s savings, and hypothecated all of their immovable properties to the maximum of available equity. A few days before leaving, Imanpoorsaid changed his life insurance policy so that his wife, Deborah Carol Riddle, became the sole beneficiary and transferred ownership of the policy to his wife.
“These facts could not be considered because a declaratory judgment should be issued when a person has not been seen or hear from – when they have ‘disappeared’ – for seven years, and an interested person makes an application to have the person declared dead,” said Quebec Superior Court Justice Geeta Narang in Re Imanpoorsaid, 2021 QCCS 4977. “In such a situation, the person is presumed to be dead.”
Ivari, an insurance company, challenged the declaratory judgment of death and maintained that Imanpoorsaid should be declared to have “returned” from his legal death.
Justice Narang, in light of new evidence, granted ivari’s application to annul the declaratory judgment of death, ordered the Registrar of Civil Status of Quebec to make the necessary changes to the Imanpoorsaid’s legal status, and ordered Riddle to pay more than $17,000 in expert fees.
A judicial declaration of death is a legal fiction meant to palliate the problems caused by the absence of a person when a traditional declaration of death is not possible, said Justice Narang.
“Those who are left behind in such situations must be allowed to move on with their lives, and they need a declaratory judgment of death to do so,” added Justice Narang.
But it’s more than that, pointed out Gelfusa. “These judgments are necessary to bring relief to those who have lost a loved one, but it’s also necessary for law” to deal with legal, financial, and matrimonial issues, said Gelfusa.
A declaratory judgment of death may be a legal fiction but in some cases the death of a person is “very likely and almost certainly the case,” underlined Justice Narang. That was the case with the 2013 Lac-Mégantic train tragedy led to the death of 47 people, some of whose bodies were never found. The same with 9/11. In those cases it is not necessary to wait seven years before a declaratory judgment of death is issued, as per article 92 of the Civil Code, said Michel Beauchamp, a Montreal notary with Beauchamp Gilbert.
Other times, the relationship between a judicial declaration of death and reality is “more tenuous,” said Justice Narang. Whether or not the person is “actually” dead is not the issue, she added. A declaratory judgment of death “creates a reality: the legal fiction of death, needed to allow people to move on,” held Justice Narang.
Declaratory judgments of death are not like traditional rulings. Traditional rulings are issued after a contradictory debate and a trial on the merits. Not so with declaratory judgments of death. Neither are they deemed to be res judicata or “chose jugée.” Declaratory judgments of death create a presumption that a person is dead, but it is not an irrefutable presumption.
Like judgments dealing with custody, personal integrity and capacity, all of which can be amended in light of new facts, so can declaratory judgments of death. Under the Civil Code, a provision entitled “Return” provides that “a person who has returned shall apply for the annulment of the declaratory judgment of death” and that any “interested person may make the application to the court” for an annulment.
Justice Narang takes issue with the term “return,” a term she describes as unfortunate as it may be construed to mean that the person who has been declared dead returns to the place where they were last seen. “It may have been reasonable to expect an absent person to return to their domicile a century ago but, in 2021, people who have disappeared – and are presumed to be dead – are likely to pop up anywhere in the world,” said Justice Narang.
According to Beauchamp, Justice Narang revealed a fissure in the Civil Code when dealing with such exceptional cases. “The Civil Code allows for the reversal of presumptions,” said Beauchamp. “But the Civil Code does not have specific articles that deal with cases that arise when a person is discovered afterwards not to be dead, but does not return physically. The Court points out that the presumption can nevertheless be reversed if there are reliable signs that a person declared to be dead is alive even though they may not have physically returned.”
Though case law is sparse on what is needed to annul a declaratory judgment of death, Justice Narang found that it is more probable than not that Imanpoorsaid is alive thanks to “semi-authentic” documents, as defined by article 2822 of the Civil Code, the insurer was able to unearth. Riddle challenged the semi-authentic status of the Iranian documents — an Iranian national I.D. card and passport. She alleged they may have been forged or falsified. But Justice Narang dismissed that contention.
This story was originally published in The Lawyer’s Daily.
