Alberta judge refuses to declare missing man dead; wife cannot claim life insurance policy
An Edmonton judge has ruled that Robyn Comey has not proved that her husband, Mark Comey, is dead, so she cannot settle the estate or get benefits from a $2 million Manulife life insurance policy.
Justice Denny Thomas’ judgment says: This is a decision on an application by Robyn Comey (“Robyn”) for a declaration of death under Rule 94 of the Surrogate Rules, Alta. Reg. 103/95 (the “Rules”) in respect to her husband, Mark James Comey (“Mark”) who was last seen on October 25, 2008 on a beach in Mexico. The Applicant advises that the declaration is necessary for the family to obtain closure, resolve Mark’s estate and obtain benefits under a $2,000,000.00 life insurance policy with The Manufacturers Life Insurance Company (“Manulife”). Manulife opposes the application and argues that this Court lacks jurisdiction to grant the relief requested on the ground that where a life insurance policy is involved then ss. 592 and 593 of the Insurance Act, R.S.A. 2000, c. I-3 (the “Act”), provides the procedure for the seeking of a declaration of death. Manulife argues the preconditions for s. 592 of the Act have not yet been met, and that the application is premature.
On October 25, 2008, Mark disappeared from the Royal Playacar Hideaway Occidental Resort in Mexico and has not been seen or heard of since.
On May 11, 2009 Foreign Affairs wrote Robyn to indicate Mexican authorities considered Mark “missing”, and that in light of the Mexican policy of not issuing death certificates in absentia that she should apply for a death certificate in Canada. A letter from the RCMP dated June 4, 2009 indicated the Mexican Attorney General’s office had concluded that Mark had drowned and have discontinued efforts to locate him.
After receipt of the June 4, 2009 letter from the RCMP, Robyn notified Manulife of Mark’s disappearance and presumed death. Manulife indicates that it is unable to complete its ‘contestable review’ of Mark’s life insurance policy because it has not yet received complete medical, business, and financial records. In particular Manulife complains that it has not received documentation on the Comeys’ personal and business financial records.
The ruling said that Manulife does not explicitly allege fraud in the present matter, but notes Mark’s disappearance remains under investigation by the RCMP and Interpol.
Justice Thomas said: “I observe that my conclusion that Mark and Robyn had most likely argued prior to Mark’s disappearance raises a third possibility, that Mark’s disappearance was not an attempt at fraud but also not the result of an accidental drowning.”
It is still up to Robyn to prove Mark is dead, but Manulife must continue investigating his disappearance or death, Thomas added.
