Fatal Accidents: a Chain of Representation under Section 7 of the Administration of Estates Act 1925
July 26, 2016
by Simon Earlam
I have seen most things Fatal Accidents Act claims throw up, but I have just been involved in a claim involving something I have not seen myself before: a chain of representation under Section 7 of the Administration of Estates Act 1925 permitting the son of deceased parents who died in 2012 and 2015 to sue the tortfeasor as the proving executer on behalf of both estates.
Mr V died in February 2012 allegedly as a result of the negligence of the Defendant. His widow, Mrs V, commenced proceedings in early April 2015 before probate of Mr V’s Will had been granted to her as his testamentary executrix. She was entitled to do this under Section 2(2) of the Fatal Accidents Act 1976 before the grant of probate to her in respect of her Husband’s death in 2012. Subsequently, in July 2015, she obtained probate of Mr V’s Will, and then died herself in December 2015 whilst the proceedings were ongoing.
The proceedings commenced by Mrs V in her lifetime were validly commenced but, on her death before conclusion of her proceedings, can her proceedings be adopted and continued by her son who was appointed her sole executor under her Will before he has been able to obtain a grant of probate?
If the son wished to commence proceedings on behalf of Mrs V’s Estate for personal injury sustained in her lifetime, it is contended the answer is no. However, where the son as the sole executor was in effect seeking to continue proceedings commenced by Mrs V in her lifetime in a manner permitted by law, the proceedings having already been validly commenced, it is contended that it will not be necessary for the son to have already obtained a grant of probate and that the continuation of the proceedings can be legitimated by subsequently obtaining a grant of probate.
CPR Part 19.8(1) stipulates that where a person who had “an interest in a claim” dies and has no personal representative, the Court may order the claim to proceed in the absence of a personal representative or a person to represent the Estate in the absence of the grant. In Berti v Steele Raymond (2001) EWCA Civ 2079, the Court of Appeal was concerned with a respondent to a bankruptcy petition who died before the petition could be heard. It was held that CPR Part 19.8 permitted the appointment of a person to represent the Estate of the Respondent without the need to obtain a grant of probate in order to contest the debt on the basis of which the petition was presented because the obtaining of a grant was considered to be at disproportionate cost.
However, what is the position with regard to the initiation of proceedings as Claimant? In Millburn-Snell v Evans (2011) EWCA Civ 577, the Court of Appeal held that CPR Part 19.8 cannot be used to obviate the need for obtaining Letters of Administration in respect of the Estate of an intestate. In the absence of Letters, there was nobody to administer the Estate. Hence, it was held that, if Letters of Administration were not granted, an action could not be commenced on behalf of the Estate. This was so even though Letters of Administration were subsequently granted. Proceedings commenced before the grant were held to be an incurable nullity even if Letters of Administration were subsequently granted.
It might be thought this principle is confined to the Estate of an intestate because, by definition, nobody has authority to administer the Estate. Is it possible, therefore, for an individual appointed an executor by Will to commence proceedings for injuries suffered by the testate in their lifetime without a grant of probate? Can such an individual rely on the Will as authority to commence proceedings before the Will is admitted to probate? Even though it might be thought the position of a testate is different from that of an intestate Claimant, it is contended that a grant of probate would be necessary before proceedings could be commenced in such circumstances. There does not appear specific authority for the proposition but, in view of the authority of the Millburn-Snell, it would be most unwise surely to assume that authority can be distinguished because it related to the Estate of an intestate.
Interestingly, Peter Smith J in the subsequent case of Meerza v Al Baho (2015) EWAC 3154 (Ch) distinguished Millburn-Snell on the basis that there was no absolute rule of law prohibiting subsequent amendment of pleadings and the Court of Appeal in Millburn-Snell had not been asked to consider the Court’s case management powers, in particular permitting amendment of proceedings under CPR Part 17.1, when arriving at its conclusion. In the case of Meerza, proceedings had been commenced without the grant of Letters of Administration which were subsequently taken out. On the basis of Millburn-Snell, the Defendant applied to strike out the Proceedings because they were an incurable nullity, but Peter Smith J held that amendment was permitted to allow the overriding objective of doing justice to take place in proportionate cost. Again, this was the case of an intestate Claimant, so it would appear that there is no authority directly in point for a testate Claimant.
This will continue to be a grey area until further consideration by the Court of Appeal. Despite Smith J’s judgement in Meerza, common prudence would seem to require a grant of probate or taking out Letters of Administration before proceedings are commenced. It is contended the only possible exception would be a claim under the Fatal Accidents Act 1976 specifically permitted under Section 2(2) of that Act.
In the case under consideration, Mrs V’s claim had been validly commenced under section 2 (2) of the Act in the absence of a grant of probate, so it would seem her sole executor, namely her son, can adopt her validly instituted proceedings and proceed before he has become a “proving executor” which can only arise on the grant to him of probate. However, in this instance, it is contended that the subsequent grant of probate will legitimate his claim as “proving executor” and that these proceedings will therefore will not an incurable nullity because the original proceedings commenced by Mrs V were validly commenced by her in her lifetime before the grant of probate to her.