Presumption of death

My father was fisherman. Last year he and his colleague left home and went to the ocean for fishing. Since then, we have never heard from him or his colleagues. Considering it was windy the day they left home, we suspect their canoe might have capsized and they must have died in the ocean. We would like to file a petition for probate in Court to appoint an administrator of the estate but are unsure as we don’t have the death or burial certificate to support the petition. Can you guide us what to do to prove death if we don’t have a birth or burial certificate?
II, Dar

Section 117 and 122 of the Evidence Act [Cap.6 R.E 2019] gives the Court powers to presume death of a person by drawing inference from the circumstances of disappearance of a person alleged to be dead. For the Court to be able to presume that someone is dead due to his disappearance, there must be evidence proving that the person claimed to be dead has not been heard from within 5 years by those who would naturally have heard of him if he had been alive. This means, in the absence of a burial certificate, death certificate or autopsy, anybody who wants the Court to assume death must lead evidence from which the Court can safely draw a conclusion that the person alleged to be dead might be really dead.

Once the possibility of death is proved, the burden shifts to the person who denies death, if any, to prove that the person alleged to be dead is possibly alive. Since it is only 1 year since your father has gone missing, in law, it is still premature for the Court to presume that he is really dead. You have to wait until the expiration of 5 years for you to file a petition for probate based on the presumption of death.

Depending on other facts, there might be other remedies available in the interim and your lawyer can guide you further.