Q: A sailing friend was recently lost at sea without trace. I gather from his widow that she is unable to claim on the insurances or pension - with which he thought she was well provided - since he cannot be certified dead for at least seven years. She understands that she may not even sell their jointly-owned home on which she now risks losing unless she manages to keep up the mortgage payments from her own small income. Is all this necessarily so? And as I am also a sailor, is there any way of protecting my dependants against my similar disappearance?

A: Proof of death is vital for admission of a death claim under life assurance and pension policies, and deaths in the UK are proven by an official death certificate. Of course, if the life assured is lost at sea without trace there can be no direct evidence of death and, since “disappearing” and being “lost” have been used in attempts to defraud life offices in the past, insurers usually exercise extreme caution when dealing with such claims.

It may be possible in these cases to prove death based on circumstantial evidence. A textbook example of this is the case of a person who is alleged to have died in an airliner which crashes into the sea. If proof can be provided that the person was a passenger on that flight and that the plane did indeed crash with the loss of all those on board, then a claim might be admitted. However, such evidence would be difficult to adduce in the case of your friend’s husband who was, presumably, lost in a pleasure boat, the course, destination and loss of which is unlikely to have been monitored or recorded in the same detailed way as that of scheduled airline flights or passenger ships.

As your friend has already been advised, it will be possible for her to apply to a court for an order presuming her husband’s death if he has been absent for seven years after the accident. It may even be possible that she need not wait for seven years if the circumstances of her husband’s loss at sea are such that the court may reasonably find that he is dead and give his personal representatives leave to swear his death. For example, if it could be proved that her husband was sailing in the area of a violent storm during the course of which other sailing boats in the area were lost.

However, as your friend knows to her cost, her husband’s disappearance does not only cause a problem with his life assurance and pension policies - his personal representatives will not be able to obtain their grant of representation, required before they can act to wind up his estate, unless and until the court will grant them leave to swear his death. In addition, she cannot even sell the jointly-owned house, or any other jointly owned asset, because she will be unable to prove to a potential purchaser her sole title to the property.

My advice to your friend is that she should consult her solicitor to see if she (andor her husband’s personal representatives) can obtain leave to swear her husband’s death within seven years.

As for sailors generally, I do not think that there is any way of protecting dependants in case of disappearance. I can only advise that you should try to ensure that your sailing expeditions are logged and monitored independently, perhaps by communication with the coastguard andor the harbour masters of the ports involved.

Andrew Warwick-Thompson is a lawyer who works for Bacon and Woodrow, the international firm of actuaries and consultants. Readers wishing to put questions to him (no names will be published) should write to the Personal Finance Desk, The ES, Admiral House, 66-68 East Smithfield, London E1 9YX (fax 071-782 3200). No personal correspond-ence will be entered into and no legal liability will be accepted for the advice offered.