CIVIL PROCEDURE BACK TO BASICS 23: YOU CAN’T SUE THE DEAD: BUT YOU CAN SUE THEIR ESTATE: WHAT TO DO IF THERE IS NO ESTATE
This post is due to a search term that arrived on this blog today “how to join a deceased person to litigation”. The simple answer is that you can’t. An action has to be against the deceased’s estate. Attempting to sue the deceased would give rise to insuperable problems, not least it would lead be a very interesting application for permission to serve out of the jurisdiction. The real difficulty arises if probate has not been taken out. Here we look at the position if there are no executors or administrators.
Probate is not taken out in nearly half of deaths. In 2009 there were 491,348 deaths registered. 196,245 grants of probate were taken out and 57,919 letters of administration. That means in 237,814 cases no administrators or executors were appointed.
THE SOLUTION: CPR 19.8
The solution is provided by CPR 19.8:
(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 SHOULD THE APPLICATION BE MADE?
The rules are silent on the issue of when an application should be made. However the obvious point for a claimant is that it has to be made prior to service. The application may, therefore, may as well be made when issuing.
The difficult issue may be who notice of the application should be served on. This is usually the person who it is proposed will be appointed to represent the estate of the deceased person.
WHO SHOULD BE APPOINTED?
Normally it is a named individual nominated by the insurer, sometimes a solicitor. If this cannot be agreed prior to issue (and it often is) then it is prudent to apply to court upon issue to determine who should be appointed to represent the estate.
DISCOVERING WHETHER OR NOT PROBATE HAS BEEN TAKEN OUT
The procedure for discovering whether or not probate or administration has been taken out is described in the Probate Service document obtainable here.