A POTENTIAL BENEFICIARY CANNOT BRING AN ACTION ON BEHALF OF AN ESTATE
The facts in Haastrup -v- Okorie  EWHC 12 (Ch) are somewhat complex. However they do bring home some important matters in relation to the need to have capacity to bring proceedings on behalf of an estate. The judgment of Master Matthews sets out some key points.
“The starting point is that, subject to the possible application of procedural rules such as CPR r 19.8, an action brought on behalf of a deceased’s estate by a person as administrator who at the date of commencing the claim does not have a grant is a nullity.”
- An action brought “on behalf” of an estate by someone,without letters of administration and who is not named as an executor in the will, is a nullity.
- That nullity cannot be rectified by any letter steps or order of the court.
The claimant was bringing proceedings on behalf of the estate of his father, although paternity was in dispute. He did not have a valid grant of probate or letters of administration.
- Proceedings brought by someone as administrator, but who does not have a grant, are a nullity.
- It was not open to the court to appoint the claimant as personal representative of the estate or to allow the claim to continue.
- There were no “special circumstances” which justified allowing the claimant to bring a claim in his own name.
- Since the claimant had no right to bring the claim in his own name the action was struck out.
PROCEEDINGS WERE A NULLITY
CPR 9.8 deals with the procedural position in relation the a claim after death.
CPR r 19.8
“(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.”
CPR 19.8 CONSIDERED
The Master considered the claimant’s arguments that he should be allowed to continue with the action.
The starting point is that, subject to the possible application of procedural rules such as CPR r 19.8, an action brought on behalf of a deceased’s estate by a person as administrator who at the date of commencing the claim does not have a grant is a nullity. In Ingall v Moran  KB 160, the plaintiff issued a writ of summons claiming to sue as administrator of his son’s estate, but did not take out letters of administration to the estate until several weeks later. The Court of Appeal held that the action was a nullity, which was not saved when the grant was later obtained.
The court in that case was clear, referring to Chetty v Chetty  1 AC 603, that the position was different where a will appointing an executor was concerned, for there the title of the executor once confirmed related back to the death, whereas the title of the administrator derived solely from the grant. The court was also clear that the proper procedure for the interim protection of an estate under threat without an executor was for a person who was a beneficiary of the estate to apply for the appointment of a receiver pending the grant of letters of administration. This view of the general position was further confirmed by the decision of the Court of Appeal in Millburn-Snell v Evans  1 WLR 41 (see especially the judgment of Rimer LJ – with whom Lord Neuberger MR and Hooper LJ agreed – at , and cases there cited).
The impact of the procedural rules, and in particular CPR r 19.8(1), on this general position was considered recently by the Court of Appeal inMillburn-Snell v Evans  1 WLR 41. In that case, before the deceased’s death his solicitors had been advancing a claim in correspondence to an interest in certain land based on proprietary estoppel. But no claim form had actually been issued at the date of his death, intestate. More than a year after his death the solicitors, now acting for the deceased’s daughters, issued the claim form in the action, stating in the particulars that the daughters were “the personal representatives of” the deceased “and are entitled to bring this claim on behalf of his estate”. This allegation was not admitted in the defence, which also disputed the claim more generally. In fact, though they would have been entitled to apply for letters of administration, they had not yet done so. Some months later, and only a few days before the trial was listed to begin, the defendant, having realised that the claimants had no grant, applied to strike out the claim. The application succeeded before the judge, and the claimants appealed.
The Court of Appeal held that the proceedings were a nullity, and that CPR r 19.8(1) could not be used to cure the defect. After considering RSC Ord 16, r 46, which was the predecessor rule to r 19.8(1), and the decision of the Court of Appeal in Lean v Alston  KB 467, the court concluded that the words “person who had an interest in a claim has died” in that sub-rule applied only to the case where the claim in question had already commenced, and then the claimant or some other person having an interest in it died. Accordingly, the appeal was dismissed.
On that basis, of course, r 19.8(1) did not assist the Claimant in the present case, because here the deceased died in 2012, and the claim was commenced only in 2015. It was therefore not open to the court either to appoint the Claimant as personal representative of the estate for the purposes of the claim under r 19.8(1)(b) or to order that the claim continue in the absence of a personal representative under r 19.8(1)(a). It was common ground that none of the other sub-rules in this rule would be of any assistance to the Claimant.
Mr Krolick for the Claimant did however seek to argue that the discussion by the Court of Appeal of r 19.8(1) was mere obiter dicta, and no part of the decision of the court, because the ratio decidendi was that the proceedings were an incurable nullity. I did not agree. The argument for the claimants/appellants was that, even if the claim was a nullity, it was not incurable because r 19.8 empowered the court to cure it. It was therefore necessary for the Court of Appeal to deal with the r 19.8 argument in order to be satisfied that the nullity was indeed incurable. In my view the discussion of r 19.8 is part of the ratio, and was binding upon me. Even if I were wrong about this, and it were not, I would still have followed it, as it seemed (and seems) to me to be clearly right, for the reasons given by the Court.