Hypothetical death sentence
Hypothetical death sentence
A hypothetical death sentence is issued for a person who has been absent for a long time and no news is available about him, and such a person is not traditionally presumed alive.
According to the law, a missing person is not presumed alive in the following cases:
- When ten full years have passed since the date of the last news of the missing life and at the expiration of that period the missing age has exceeded seventy-five years.
- When a person is one of the members of the armed forces and is missing during the war and three whole years have passed since the date of the peace without any news of him. If the war does not lead to a peace, the period shall be five years from the date of the end of the war.
- When a person is on a ship on a voyage in which the ship has been lost, three years have elapsed since the ship was lost without news of the passenger.
Competent persons to apply for a hypothetical death sentence
A) Absent heirs
B) Guardian
C) The testator or the person in whose favor the will was made.
How the court hears the application for a hypothetical death sentence
In the case of a presumptive death sentence, the case of the missing person is referred to the local family court where the last place of residence was absent. If the last absentee residence is outside Iran, the court is competent to deal with the absentee case, which was the last residence of the absentee in the jurisdiction of that court. If the absentee does not have any of the above, the court of residence or residence of the absentee heirs has jurisdiction. If the heirs are not known, the competent court of the property is absent.
If the request for a presumptive death sentence is made by the interested parties, the court will publish an announcement and invite persons who may have news of the absence to provide their information to the court. This ad is published three times, one month at a time, in one of the local newspapers and one of the most widely circulated newspapers in Tehran. The court can issue a presumed death sentence when one year has not elapsed since the publication of the last notice and the absentee is alive. After this period, the court will schedule a hearing and the hearing will be held in the presence of the applicant and the prosecutor. The applicant’s absence from the hearing does not preclude the trial and it is not necessary for the prosecutor to be present in person. The court is also required to include in the hypothetical death sentence, the name and surname of the applicant and the missing details, the reasons and documents of the sentence and the date of issuance of the sentence, as well as the ability to object and appeal against the verdict.
Appeal against a hypothetical death sentence
The issuance or non-issuance of a hypothetical death sentence has two aspects; one aspect that is a hypothetical death sentence can be challenged by the prosecutor. Another aspect is the rejection of the hypothetical death sentence, which can be challenged by the applicant.
The effects of a hypothetical death sentence are missing
These works include; payment of the deceased’s debts, execution of his will and division of the estate among the persons who are his heirs on the presumptive date of death. Of course, it should be noted that the issuance of a hypothetical death sentence does not prevent him from taking back his property if he is found absent.
If you have any questions regarding a hypothetical death sentence or related legal provisions, or if you need guidance in preparing and enforcing the provisions of a hypothetical death petition and bill, our experienced consultants and attorneys at Asia Lawyers Group will answer your questions.
