Harville-Stein Law Offices, LLC

 

HARVILLE-STEIN LAW OFFICES, LLC
2159 S. MCKENZIE STREET, #250
FOLEY, AL 36535
Phone: 251.979.6641


 

SERVING BALDWIN COUNTY, ALABAMA


 

Natalee Holloway -- Presumption of Death: A Case Study

By:  Dean D. Stein, CMA

I can relay my impressions of this case to you for two reasons.  First, it is public information, and second, because I was there.  This is my first-hand account from my personal knowledge and observations, as I represented the interests of Natalee Holloway as her Guardian ad litem, in the Petition for Presumption of Death action brought by her father, Dave Holloway. 

Tragically, Natalee disappeared on May 30, 2005, while she was on a high school graduation trip to Aruba.   Natalee Holloway was scheduled to fly home, but failed to appear for the flight.  Her packed luggage and passport were found in her hotel room.  She had been last seen at Carlos’n Charlie’s, outside, in an automobile with local residents.  The disappearance garnered international attention and numerous searches with the help of volunteers, special agents from the FBI, Dutch Soldiers and aircraft and even divers who examined the ocean floor for evidence of Natalee.  Natalee was a little less than five months shy of her 19th birthday.   Joran Van der Sloot and others were arrested once or more on suspicion of involvement in Natalee’s disappearance, but were released without charge.  Van der Sloot made several statements regarding what happened to Natalee Holloway, but many were vague, inconsistent or outright contradictory, or did not fit the known facts.  Van der Sloot is currently in a prison in Peru having been held since June 2010, on suspicion in the murder of Stephany Flores, a 21 year old woman, and on January 11, 2012, he entered a confession to the murder of Ms. Flores, killing her exactly five years to the day that Natalee had disappeared.   Sadly, evidence at the hearing on the presumption of death indicated that Natalee has not been seen nor heard from since the day she disappeared, and her body has not been discovered.

Alabama law provides that evidence in support of the presumption of death includes: “A person who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.  His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.”   In Natalee’s case, the evidence reflected that she had been absent from her home in Mountain Brook, AL, for six years and four months by September 30, 2011.  She had no contact with her father during that time, and to his knowledge, no one else.  Diligent search and inquiry was performed, by the FBI, Aruban authorities and Dutch authorities, including land search, water search and air search, as well as the interview of persons suspected to have been with her the last day she was seen.  Faced with this substantial, credible evidence, the Court ruled the presumption of death could be established by the petitioner, her father. 

In this case, some question arose as to “where” this Petition should have been filed.  Natalee was not born in Alabama, and therefore, attorneys in opposition argued that the Jefferson County, Alabama, probate court did not have “jurisdiction” over the matter.  However, the Alabama Code clearly indicates that the basis for “where” to file such a petition, is not where the person was born, or even where they disappeared, but is “the place of his last domicile,” which in Natalee’s case, was clearly Mountain Brook, in Jefferson County, AL. 

The procedure starts with the filing of a petition, and the probate court determines if the person petitioning would be entitled to Letters of Administration on the person’s estate, if in fact they are deceased, and if the court finds they would, then notice of the petition is advertised in a paper in the county for four weeks and includes a date set for preliminary hearing, which is no less than two weeks after the last of the advertising.   At the preliminary hearing, the court hears evidence concerning the absence of the alleged presumed deceased, and the circumstances and duration thereof.   On September 23, 2011, at 9:30 a.m., just such a hearing was held.  The petitioner, Dave Holloway, was present in court.  His attorneys were present, and an attorney representing her mother, Beth Holloway was present.   The court, with the Honorable Alan L. King, Presiding Judge of the Probate Court, Jefferson County, Alabama, presiding, asked if any preliminary matters needed to be addressed.  Beth Holloway’s attorney asked for a “continuance” of the hearing, that is a delay, due to Beth Holloway’s having a previously scheduled speech to give, and the issue of the Court having jurisdiction, mentioned previously.   Dave Holloway’s attorneys objected, noting that Beth Holloway had 15 days notice as required, and arguing that no jurisdictional issue existed.  The Court, having heard from all parties, ruled that the hearing should in fact proceed. 

The preliminary hearing was very emotional.   Natalee Holloway wasn’t just “a person presumed dead,” she was Dave and Beth Holloway’s daughter, their child.  Understandably, he tearfully recounted how the last time he saw her was at her high school graduation.  During the time that had passed since her disappearance, Natalee had ascended to a position of being thought of not just as the Holloway’s daughter, but as Mountain Brook’s daughter, Birmingham’s daughter and Alabama’s daughter.   Her case had tremendous national and international coverage.  She was a young woman with a life that held great promise.  She had graduated with an “A” average and was an Honor Student in the 10th, 11th and 12th grade.   She was Class Treasurer, a member of Future Business Leaders of America, Historian for the National Honor Society, Nature Helpers Club, Student Government Representative, Spanish Honor Society member and a member of Spartan Pride and dance member of the Dorians.   Testimony showed Natalee had no medical issues, psychological issues or family issues or concerns.  Not a child who would simply runaway.    Dave spoke to the fact that she had not contacted him in all this time, notwithstanding they had a close relationship, that Natalee had regular visits with her father, and telephone calls between visits.  There was no bank card, credit card, telephone or other activity that would indicate that Natalee was still living. 

When it came time for me to ask Dave Holloway questions, I asked several of him.  I needed to approach my responsibilities with both diligence and sensitivity.  First, I asked him if he understood my role in this matter, that I had been appointed to represent the interests of Natalee Holloway, his daughter, and to protect her interests in the proceedings, to which he replied “yes.”  I then asked some other general background questions.  Those questions lead to asking Dave if the authorities in the case, either Aruban, Dutch or the FBI, believed Natalee was deceased.  To this question, Dave responded that he had recently checked with the FBI before this hearing, that they had previously indicated that the investigation had become a murder investigation, and that nothing had changed to the present time.  When I asked Dave if he had any knowledge today of any information, whether he held it, or if he knew Beth Holloway held it, or any other person, that would lead him to believe that Natalee was still alive, he quietly replied “no.”  That would be the last question asked of him by anyone, before he stepped down as a witness.

If the Court is satisfied, upon the preliminary hearing, that the legal presumption of death is made, the Court will issue an Order to Show Cause of Continuance of Life, then the Court causes a notice to be published in a newspaper in the county for two weeks, and if practicable, in a newspaper published at or near, the place where the supposed decedent had his residence.  The notice requires that the supposed decedent, if alive, or any other person for him, produce to the court, within 12 weeks of the date of the last insertion of the notice, satisfactory evidence of his continuance of life.   A final hearing is then set to permit the alleged decedent or any other person to bring forward proof of life. 

The process and procedures are in place to try to make sure that when a person is declared to be presumed dead, that it is very unlikely that they will in fact still be remaining alive.  Multiple notices, the taking of testimony and presentation of evidence, multiple hearings, and the appointment of an attorney, in this case me, to protect the interests of the alleged deceased, are procedures intended to safeguard the interests of the missing person.   It is a process geared, among other things, to making sure that the assets of a person are not marshaled, and distributed to others, when in fact that person is still alive.  Under Alabama law, the probate court may revoke the said letters at any time on due and satisfactory proof that the supposed decedent is in fact alive, were that situation to arise.

On January 12, 2012, on a cool afternoon in Birmingham, AL, with a mix of clouds and sun, the temperature only having gotten up to 51 degrees that day, the final hearing in this case was held.  Present were both Dave Holloway and Beth Holloway, and their respective attorneys.  Both Holloways were pleasant and gracious to those in the courtroom, and understandably sad, for this was a day they had anticipated for some time, and yet was still difficult for them to endure.   As the Guardian ad litem, I had filed earlier that morning a written report to the Court. The Report is a review of the findings of fact, a recitation of the Guardian ad litem’s efforts in the case, a review of the relevant law, and a conclusion of the findings.  The Guardian ad litem is charged with taking the position of “denying the allegations of the petition” and “requiring strict proof thereof”.   In other words, the Guardian ad litem protects their client, by not accepting anything in the petition as fact, by making sure that the facts are proven, and by making sure each requirement of the law is strictly followed.  In this case, among other facts, I could represent to the Court that in addition to the evidence in the form of testimony previously presented at the last hearing,  that no person had contacted me with any information during the 12 weeks that would lead me to believe that my client was living, no other party filed anything with the Court to indicate my client was living and that I was unable, on my own efforts, to find any information to lead me to believe the petition was not substantiated, and that my client was still alive.  There having been no information provided to the Court by anyone, that Natalee was still living, within the 12 week period set out by the code, the Order on Legal Presumption of Death was due to issue, and the Judge signed such an Order that day stating in part “It is therefore, ORDERED, ADJUDGED AND DECREED by the Court that Natalee Ann Holloway is hereby presumed and declared to be legally dead and that the Center of Health Statistics shall prepare a Presumptive Death Certificate acknowledging the same”.  The Court set her date of death as May 30, 2005.

All probate cases dealing with the death of individuals have their own level of grief attached to them for the parties that survive.   Even more so in the filing of a presumption of death for a missing person action.  No matter how certain the individuals may be of the death of the person, the lack of absolute evidence, in the form of the deceased’s body, makes the case even more difficult.   The ability to file a presumption of death petition is of real importance.  Certain policies of insurance may not be collectible without it, you may still need to pay insurance premiums on the presumed person, or even child support.  You cannot open an estate without it, which is required for filing wrongful death suits in Alabama.  You may not be able to obtain release of important medical records on the presumed deceased from medical providers that might be required by insurers.  You may have accounts or other property of the missing person that cannot be collected, managed effectively or distributed, without such an action and determination from the probate court.  And, for some people, the official declaration hopefully may bring some degree of closure. 

Of one fact in this case there has never been any doubt, the evidence was overwhelming.  Natalee, in her too brief life and disappearance, had touched the hearts of many. 
 

This article is generally based on Alabama law, the law of your state can vary widely.  This is not intended to constitute, nor should be taken by you as legal advice and is not intended and does not create an attorney/client relationship.

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