Mr Joshua Purser dissects the law and procedure surrounding the bringing of an action against a proposed Defendant who has deceased. He explores the difficulties that arise from an absence of a Grant of Representation and how these obstacles are navigated by the courts.
It is in these unprecedented times that we perhaps find ourselves questioning our mortality with more intentness than we otherwise would. Whilst a macabre topic, the wheels of litigation do not slow for long and when the dust of a global pandemic settles it is possible that potential parties to proceedings have sadly passed away. Alas, there will be a number of instances where their passing leaves wrongs to be righted and agreements to be honoured. This article will outline the procedure for pursuing a claim against the estate of a deceased, particularity in the absence of a Grant of Representation.
GRANT OF REPRESENTATION: DOES IT MATTER?
There are instances in law where the Personal Representative (PR) of an estate can be sued. The obligations of such an individual are wide reaching and a deficiency in their performance can result in them being sued for, amongst other things, breach of trust and devastavit (wasting of assets). This article focuses solely on liability on behalf of a deceased for actions in their lifetime.
Whilst it is often the case that the identity of PR is preordained by some testamentary instrument, that individual does not become responsible for the affairs of the estate until a Grant of Representation has been properly obtained. Until that point, or such a point that an individual makes himself an executor de son tort, it is open to that individual renounce the role.
An executor de son tort, or ‘executor of his own wrong, is an individual who, although themselves have no entitlement to the role of PR, or perhaps later does not wish to act in that capacity, nevertheless carries out acts which constitute administration of the estate. These actions are known as intermeddling. Section 28 of the Administration of Estates Act 1925 details the consequences of becoming an executor de son tort. In short, they may find themselves just as liable for the estate as a PR. Examples of intermeddling may include but are not limited to; paying debts of the deceased; selling the assets of the estate; calling in debts; and/or continuing business in the name of the deceased. This is in contrast to arranging the funeral; removing assets and placing them into storage; and/or making arrangements for the welfare of dependants.
In the United Kingdom, a Grant of Representation is not taken out in almost half of the deaths. A straightforward search can be carried out at https://www.gov.uk/search-will-probate to find out if there is one in your case. Never fear, an estate without such a grant does not exile your proposed action to litigation purgatory. The Civil Procedure Rules provide the remedy in these circumstances in the form of CPR 19.8(2)(b).
(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.
(2) Where a defendant against whom a claim could have been brought has died and –
(a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
b) a grant of probate or administration has not been made –
(i) the claim must be brought against ‘the estate of’ the deceased; and
(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
(3) A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) where –
(a) the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or
(b) the person against whom the claim was brought was dead when the claim was started.
(4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
(5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.
WHEN DOES THE APPLICATION NEED TO BE MADE?
Plainly, the question of who is taking up the mantle on behalf of the estate is one that needs to be satisfied before service of proceedings. The rules nor the authorities in this area indicate when such an application under this part should be made but it seems that upon issue of the claim would be the most logical time.
This begs the question, upon whom do I effect service of the application? The person to be appointed as PR is generally not a contentious issue. Where there is want of a PR for absence of a will or the like, it is not uncommon for a solicitor or individual nominated by the insurer to be appointed. It is upon the putative PR that the application should be served.
WHAT ACTIONS CAN BE BROUGHT AGAINST A PR/ESTATE?
Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides the general rule that any cause of action existing at the date of an individual’s death survives either for the benefit of, or against the estate. The causes of action expressly excluded from this general premise are those brought against a deceased person for defamation and claims under section 1A of the Fatal Accidents Act 1976 for bereavement. Alas, it is incredibly difficult to pull together an exhaustive list of actions which are defeated by a proposed Defendant’s demise.
As for the actions which remain, there is no bright line test as to what actions can be properly advanced against the estate of the deceased. Contracts which were entered into by the deceased in his life time are governed by the specific clauses of the particular contract. Often, it is the case that contracts concerning personal services will not survive an individual’s death, whereas a contract requiring payment for work done generally leaves the debt owing. The contract, as in Farrow v Wilson (1869) LR 4 CP 744, is often the what holds the answer to the fate of the action.
There is a string of authority in relation to building works being engaged prior to the death of the deceased. In Re Rushbrook’s Will Trust  Ch 412, a devisee of the land was held to be entitled to have the contact performed in return for payment. It seems that works done must be completed for payment unless that particular contractor was engaged for a particular skill.
A contract to sell land or the covenants under a lease must be fulfilled by the PR. It is a matter for the PR, in circumstances where the covenants of a lease are particularly onerous whether to assign or surrender it. This particular domain is governed by section 26 of the Trustees Act 1925.
PRs are also liable to contribute to the assets of a company that is being wound up if the deceased was a contributory pursuant to section 81(1) of the Insolvency Act 1986.
As for an obligation to pay child support, this ceases upon death pursuant to paragraph 3(3) Schedule 1 Children Act 1989.
What must be remembered is that the PR is only being sued under the auspices of their roles as representative of the estate. Whilst a personal liability may arise if a PR wastes costs (devastavit) unnecessarily, for instances defending a claim without merit, ordinarily they are only liable to the extent of the assets of the estate. A PR has the power to release funds in satisfaction of a debt and compromise or submit to arbitration any debt or issue relating to the deceased’s estate on trust.
What is plain is that there are a number of anomalies in relation to what actions can be taken up after the death of a proposed Defendant. Whilst the obstacles of taking on an estate without a Grant of Representation can be overcome with relative clarity, knowing whether your cause of action is one that can properly be advanced requires careful consideration.