Seven Years. That Is How Long Malaysian Law Makes A Family Wait Before A Missing Person Can Be Presumed Dead.

If someone in your family is missing, this page is written for you. You do not have to wait seven years to do everything. The seven-year rule governs the presumption of death. Several practical steps — protecting bank accounts, dealing with insurers, and in some cases obtaining a death certificate on circumstantial evidence — can be taken earlier. Those are in section 5. First, if you have not already:

• Lodge a police report and get the report number
• Notify the missing person's bank in writing — this is the single most protective early step, and section 6 explains why
• Keep a file of everything: the report, correspondence, dates If you need to talk to someone: Talian Kasih 15999 (24h) · Talian HEAL 15555 (8am–midnight) · Befrienders KL 03-7627 2929 (24h)

Malaysia has no dedicated presumption of death statute. England and Wales have the Presumption of Death Act 2013. Ireland has the Civil Law (Presumption of Death) Act 2019. Scotland has had one since 1977.

Malaysia has section 108 of the Evidence Act 1950 — an evidential provision, not a procedure — and law scattered across the Births and Deaths Registration Act 1957, the Criminal Procedure Code, the Syariah Court Evidence (Federal Territories) Act 1997 and the Islamic Family Law (Federal Territories) Act 1984.

A 2025 academic study of the practical effects put it bluntly: the mandatory waiting period imposes significant legal, financial and emotional burdens, delaying estate administration, financial claims, government benefits, transfer of property ownership, and family closure.

1. What section 108 actually says

When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Two things follow that people misunderstand.

It is a rule about burden of proof, not a declaration of death. Section 108 does not say the person is dead. It says the burden shifts. That is why a court order is needed to convert it into something a bank or insurer will act on.

It is a proviso to section 107, which provides that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Section 107 presumes life. Section 108 is the exception.

The two facts that must be proved: 1. the person has not been heard of for seven years; and 2. he has not been heard of by those who would naturally have heard from him had he been alive

That second limb is why the applicant matters. The application is made by the person who would naturally hear from the missing person — a spouse, parent, child or sibling. A distant relative or a creditor is in a weaker position.

2. MH370 — what it exposed

The disappearance of MH370, together with the loss of MH17, is what forced Malaysia to confront this law. Academic commentary records that these events triggered the need to revisit the common law doctrine of presumption of death and its application in Malaysia, with scholars arguing that a seven-year wait before an application can even be filed is absurd and no longer relevant in modern society — noting that the UK, US, Australia and Canada have moved away from the pure common law position.

The Malaysian government made a formal declaration on MH370. But a declaration by government is not the same as a court order, and the gap caused real problems.

On marital status, it was reported in 2015 that even with the government's declaration, the marriage status of victims was not dissolved and claims against an estate could not be made — and that a presumption of death order from the High Court under s.108 would still be required where no body was found.

On money, the consequences were worse than legal limbo. Reporting documented a Malaysian couple stealing from the bank accounts of missing MH370 passengers: a woman transferred RM35,000 from a passenger's account, used falsified documents to obtain a new debit card in the passenger's name, and the card was used to withdraw funds via ATM — in stages, because of the RM5,000 daily limit, between 15 May and 29 June. The fraud was only discovered by an internal bank audit in July.

The wife of one MH370 passenger described the pain that caused the families.

We are including this deliberately, because it is the single strongest argument for the practical step in section 6 of this article: notify the bank, in writing, early.

3. The important exception — you may not always need seven years

This is the most useful thing on this page and it is buried in most coverage.

Practitioner commentary records that where there is circumstantial evidence that would lead a reasonable person to believe on the balance of probabilities that the individual is deceased — as in the mysterious disappearance of MH370 — a death certificate may be issued without waiting the full seven years.

In other words: the seven-year rule under s.108 is one route, not the only route. Where a person disappeared in circumstances strongly indicating death — an aircraft loss, a shipwreck, a natural disaster, a documented accident with no body recovered — the evidential picture may support an application earlier.

We are being careful here. We could not verify the precise threshold, the procedure, or which authority issues the certificate in those circumstances. If your family member disappeared in a specific, documented incident rather than simply vanishing, take legal advice now rather than assuming you must wait seven years. That advice may materially change your position.

4. The court process

Where: the High Court.

How: by filing the relevant cause papers, commonly an ex parte Originating Summons supported by an affidavit.

Who applies: the person who would naturally have heard from the missing person.

What the court does: where s.108 has been complied with, the court grants an order in terms of the Originating Summons — a declaration of death.

Evidence you will need to assemble (take advice, as requirements vary):

• the police report of the disappearance, and any subsequent reports
• evidence of when the person was last heard from, and by whom
• evidence of efforts made to trace them — inquiries with relatives, friends, employers, hospitals, embassies
• proof of the relationship between the applicant and the missing person
• the missing person's identity documents, or copies
• any newspaper advertisements or public notices placed
• bank, employment and immigration records showing no activity

After the order: 1. Register the presumption of death with JPN using the court order. The government's own guidance sets out the sequence: search or extract the death certificate at JPN, obtain the Presumption of Death Order from the High Court if no death record exists, then register the presumption of death at JPN using the court order. 2. JPN issues a Certificate of Presumed Death. 3. Apply for a grant of representation — Letters of Administration where there is no will, or probate where there is. 4. Use the certificate for estate administration, cancellation of official documents, insurance claims and other legal matters.

Note s.18 of the Births and Deaths Registration Act 1957: every death in the country must be registered on condition that the body was found. Where no body is found, the s.108 route is what fills the gap.

5. For Muslim families — a shorter period

Section 80 of the Syariah Court Evidence (Federal Territories) Act 1997 applies the same presumption but with a four-year period rather than seven.

On marriage. Reporting on the MH370 cases noted that a spouse intending to dissolve the marriage may apply for fasakh on the ground that the spouse had disappeared for more than a year, or may apply to the court for a presumption of death declaration.

These are Syariah court matters and the position differs across states. See a peguam Syarie. Do not rely on a general article for a marriage dissolution question.

6. What a family can do BEFORE seven years

This is the section to act on today.

Protect the accounts. This is urgent.

• Write to the bank informing them the account holder is missing, enclosing the police report. Ask them to note the file and flag unusual activity.
• Keep a copy of your letter and their acknowledgement.
• The MH370 fraud case is exactly what this prevents: an internal audit caught it months later, by which time the money was gone.

Deal with insurers early.

• Notify the insurer in writing that the policyholder is missing, with the police report.
• Ask, in writing, what their requirements are for a claim where the insured is missing — some insurers have specific procedures.
• Keep paying premiums if you can afford to. A lapsed policy is a much worse problem than a delayed claim.

Preserve everything.

• Keep the original police report and every subsequent report or update.
• Keep a written chronology: when last seen, last contact, last known location, who was contacted and when.
• Keep evidence of every search effort — you will need it for the court application.
• Do not throw away the missing person's documents.

Protect the property.

• If there is a mortgage or loan, tell the lender. Non-payment does not become easier by being unexplained.
• If there is jointly owned property or a joint account, take advice on what you can and cannot do.
• Do not attempt to deal with the missing person's assets without authority. That is where people get into legal trouble, however well-intentioned.

Consider guardianship. - If there are children, take advice on their legal position, maintenance and schooling.

Look after yourselves. Ambiguous loss — grieving someone who is missing rather than confirmed dead — is recognised as particularly difficult. Talian Kasih 15999, Talian HEAL 15555, Befrienders KL 03-7627 2929.

7. The reform argument

We think readers dealing with this deserve to know the criticism is mainstream and not fringe.

Malaysian academic and practitioner commentary argues:

• there is no dedicated presumption of death statute, unlike England and Wales, Ireland and Scotland
• Malaysian law is silent on the definition of "missing persons"
• the seven-year wait delays not only estate administration but obstructs timely access to critical financial resources
• the affected families are left "unable to act on behalf of the missing person or resolve critical legal affairs"
• the burden falls particularly on a wife on the status of her marriage and on beneficiaries on the status of estate administration

The counter-argument is straightforward and also serious: a presumption of death is irreversible in practical terms, and a short period risks declaring dead someone who is alive — with consequences for property, marriage and identity that are extremely difficult to unwind. The seven-year period is deliberately conservative.

This article does not adjudicate that. But if you are living it, the criticism is documented and you are not unreasonable for finding the wait hard.