ISSUING ON BEHALF OF AN ESTATE WHEN THERE IS NO GRANT OF PROBATE: THE PROCEEDINGS WERE A NULLITY

December 12, 2023 · by · in Applications, Civil Procedure

The judgment of Master Brightwell in The Ali Abdullah Alesayi Will Establishment v Alesayi [2023] EWHC 3150 (Ch) provides a reminder of some important reminder of some important principles when issuing on behalf of the estate of a deceased person.  Firstly if there is no will then letters of administration are essential, if proceedings are issued without then the action is a nullity. The position is different if there is a will and the action is brought by the executors of that will. The action is not a nullity, albeit a grant may may be required at some time.  The judgment also points out the specific requirement that, in the case of a foreign will, the claimant must obtain a grant of representation in England and Wales.

“It is a general requirement of English law that a grant of representation must be obtained in England in order to enable a person representing a deceased person abroad to bring proceedings in England. Authority granted in a foreign country has no operation in England:”

 

THE CASE

The claimant brought an action stating that it was the “parent holding entity” of the assets of Ali Abdullah Ali Alesayi who had been resident in Saudi Arabia.  Proceedings were issued against one of Mr Alesayi’s s son.  The court was considering the issue as to whether the proceedings were, in reality, brought on behalf of the estate, or were an action brought on the claimant’s own behalf.  The court concluded that all of the actions were brought on behalf of the estate. The claimant had not obtained letters of administration in England and therefore had no right to bring the claims. The action was, therefore, a nullity.

 

THE ESTABLISHED PRINCIPLE

 

  1. It is an established principle that, in order to sue in the courts of England and Wales, a person has no standing to institute proceedings as an administrator in advance of the issue of letters of administration, and that proceedings brought earlier are a nullity: see Jennison v Jennison [2023] Ch 225 at [18]. The claimant has no grant of representation. The issue therefore arises whether the current proceedings are brought for the administration of a foreign estate and a nullity accordingly or whether they are properly to be seen as proceedings brought for the benefit of the claimant personally.

 

 

The requirement for a grant of representation in England

The judgment sets out the  specific requirements where a foreign personal representative is involved.

    1. It is a general requirement of English law that a grant of representation must be obtained in England in order to enable a person representing a deceased person abroad to bring proceedings in England. Authority granted in a foreign country has no operation in England: Dicey, Morris and Collins, The Conflict of Laws, 16th edn at 27-036:
‘The general rule is that a foreign representative of the deceased who wishes to represent him or her in England must obtain a grant of representation here and cannot sue in his or her character of foreign personal representative. The Rule, is, in short, an application of the general principle that no person will be recognised by the English courts as personal representative of the deceased unless and until he or she has obtained an English grant of probate or letters of administration.’
    1. In High Commissioner for Pakistan in the United Kingdom v National Westminster Bank plc [2015] EWHC 3052 (Ch), a person claiming to be an heir of the late 7th Nizam of Hyderabad claimed to be entitled without any grant to sue in stakeholder proceedings in England, in relation to a fund held here by the defendant bank. Henderson J said this, at [28]–[30]:
’28. That argument, it seems to me, is not sustainable on the basis of authority which is both clear and binding on me. Under the English conflict of laws, the stage of administration of an estate is governed by the law of the place where the assets are situated, which, in the current context, means England. Procedural questions arising in the administration are, likewise, dealt with by the law of the place where the administration is taking place. It is only when one gets on to the question of succession and who is entitled beneficially to share in the estate that one looks to the law of the domicile of the deceased, where one is concerned, as here, with personal property.
29. The disputed fund is situated in this jurisdiction. That remains the case, regardless of how it may vest in accordance with the Muslim personal law of the 7th Nizam. The authorities establish that claims to property in this jurisdiction can only be advanced by and through a properly constituted personal representative. That proposition is most succinctly stated by Warrington LJ in the case of Re Lorillard [1922] 2 Ch 638 at 645-6, where he said:

“The principle is that the administration of the estate of a deceased person is governed entirely by the lex loci and it is only when the administration is over that the law of his domicile comes in.”

30. I was also referred to a first instance authority in the British Virgin Islands to similar effect, and to the decision of the House of Lords in New York Breweries Co. Ltd v Attorney General [1899] AC 62.’
    1. This line of authorities was recently considered in detail by Dame Clare Moulder DBE in Viegas v Cutrale [2023] EWHC 1896 (Comm). There, a large number of individuals connected with orange farmers domiciled in Brazil brought claims in the Commercial Court relating to an alleged cartel between Brazilian undertakings concerning the production of orange juice. Claims were pursued by or on behalf of a number of persons who had died, without those bringing the claims having first obtained a grant of representation in England.
    1. The judge first declared that claims brought in the name of a deceased person were a nullity. She then moved to consider the claims brought by personal representatives (before obtaining a grant). The first stage was to consider the proper characterisation of the claims, i.e. as concerned with administration or of succession. Characterisation is a matter for the lex fori, i.e. English law: see at [173], citing Macmillan Inc v Bishopsgate Investment Trust plc (No.3) [1996] 1 WLR 387 at 407B (Auld LJ). This was relevant because the rule described by Henderson J in High Commissioner for Pakistan does not apply where a person has an absolute entitlement to a deceased’s property in accordance with the law of the domicile and where it is enforced in England in a personal and not a representative capacity: see Haji-Ioannou v Frangos [2010] 1 All ER (Comm) 303 at [74] (Slade J), citing Vanquelin v Bouard (1863) 15 CB (NS) 841. Where a person sues pursuant to such a right, their claim is characterised as a matter of succession, which is governed by the law of the domicile.
    1. In Viegas v Cutrale, Dame Clare held at [198] that, insofar as a claim is brought before the distribution of assets, it relates to the administration of estates and an English grant is required in order for the heirs to bring the claim and collect the assets on behalf of those entitled to the assets of the estate in question. Then, and on the basis of the detailed evidence of Brazilian law before her, she found that the heirs had no absolute entitlement to the property but acted on behalf of all those entitled to the relevant estates, and thus required a grant. It is now very clearly established on authority that a claim commenced by a claimant purportedly as administrator (and not as executor) is an incurable nullity: see Jogie v Sealy [2022] UKPC 32 at [41]–[55] (Lord Burrows); [122]–[124] (Lord Leggatt) (expressly assuming that the relevant law in that appeal from Trinidad and Tobago was the same as English law). There appears to be an exception where a limitation period has expired (see at [54]) but there is no suggestion of that being relevant in the present case. Where proceedings are a nullity, they are ‘born dead and incapable of being revived’: Millburn-Snell v Evans [2012] 1 WLR 41 at [30] (Rimer LJ), and the lack of standing is not an error of procedure which can be cured: Jennison v Jennison at [60] (Newey LJ).

A REMINDER – WHERE THERE IS A WILL  (MADE IN ENGLAND AND WALES) THERE IS A WAY…

The position is different if there is an executor  (and the will is not a foreign will).  Proceedings issued before probate is obtained is not an nullity, although the grant most probably has to be obtained at some stage.

 

  1. Where proceedings are brought by a named executor, but before a grant of probate has been obtained by that person, they are not a nullity. The proceedings may be pursued until a grant of probate must be produced: Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 22nd edn at 5-10. This is because the executor’s authority derives from the will and not merely, as in the case of an administrator (including where the grant is of letters of administration with a will annexed), from the grant: Chetty v Chetty [1916] 1 AC 603 at 608–609 (Lord Parker of Waddington).

 

 

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