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19 October 2018 | Comment | Article by Roman Kubiak TEP

What happens to a claim when a person dies?

Roman looks at the practical problems which can arise when a person who is pursuing a claim dies.

For a number of people this is a problematic area. Who can legally continue with the matter on behalf of the deceased claimant? It is often not the person who would ordinarily be expected to act.

s.15 Trustee Act 1925 allows personal representatives of the deceased’s estate to accept and settle claims. Therefore, if the deceased died leaving a will it would fall to the executors of that will legally to represent the estate of the deceased and pursue the claim. The executors would be entitled to receive any damages or award for distribution in accordance with the terms of the will.This can create a problem, particularly if the deceased appointed a professional body to act as their executors. The executors would or might not have any personal knowledge of the deceased but would be expected to act in the best interest of the estate and maximise that estate as far as possible.

Where there is a will which either fails to name executors or the executors renounce probate, it would fall to the residuary beneficiaries of the will to apply for a grant of letters of administration (with will annexed). Although the will is still a valid document there is no longer any executor in existence so the residuary beneficiaries would be appointed in their place as administrators of the will i.e. the personal representatives of the estate.

Alternatively, where the deceased died without leaving a will, the nearest relative (as set out by s.46 Administration of Estates Act 1925) will be entitled to act as administrator of the intestate estate and apply for a grant of letters of administration. On the face of it this appears to be quite straightforward and generally it is, but sometimes it is not. Let us imagine that Mr X has suffered an injury at work and was suing his employer for negligence. The injuries he sustained resulted in his death. He had lived for the past five years with his partner Miss Y. He had a son from a previous marriage whom he had disowned due to the son’s alcoholism and drug abuse and had not made contact with him for over ten years. Mr X had not got around to making a will. Damages from the claim were expected to be in the region of £250,000.Miss Y was devastated at Mr X’s death. She wasn’t his nearest relative and as he had not made a will the only person entitled to apply for legal representation by virtue of a grant of letters of administration would be his son who would also be entitled to the award of damages.

The court can also deal with an issue where a party to a claim has died. The Civil Procedure Rules (‘CPR’), which govern how parties are to act in civil claims, deals with the death of a party to a claim. CPR19.8 states:

“(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order –

(a) the claim to proceed in the absence of a person representing the estate of the deceased; or

(b) a person to be appointed to represent the estate of the deceased.”

In any situation, a party taking on a claim on behalf of the deceased must be very careful to ensure that they act in the estate’s best interests. As such, in many cases they are advised to seek an indemnity from the court to protect themselves from an adverse costs order. Such an application is made under part 64 of the Civil Procedure Rules and is more commonly known in the profession as a ‘Beddoe order’ after the case of Re Beddoe [1892] 1 Ch 547.

Problems which can arise

The most unusual situation I have encountered is where a claim was being pursued retrospectively for industrial disease for a deceased gentleman who had died a number of years before the claim was registered. The claim appeared to have merit and so the question arose about requesting a grant of representation. The eldest son of the deceased had lodged the claim on behalf of the family. However, upon investigation, it was found that the deceased had died intestate leaving a widow who later re-married.

She subsequently died intestate, leaving her second husband as her widower who, under the laws of intestacy, inherited her estate. The widower died leaving a will appointing his ‘mistress’ as executrix and sole beneficiary of his estate. The result under the rule of succession was that the ‘mistress’ was entitled under a chain of representation to take out the grant of representation to the deceased client’s estate and entitled to the award for damages. The children of the deceased client were entitled to nothing.

As the deceased’s children they would, however, be eligible to pursue a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 but such an action does not automatically entitle the children to anything from the estate.

Whoever said dealing with probate matters is boring!!

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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