The National Will Register

10 September, 2018 14:18:30

What happens if a client dies in the midst of a litigation case?

You are part way through, or possibly near the end, of a difficult contentious case when your client suddenly dies. The client could be the claimant or defendant. What do you do? This can be a problematic circumstance but, luckily, not one we are faced with too often.

The starting point is to identify who can continue the claim on behalf of the deceased client’s estate.

If the deceased client left a Will then section 15 of the Trustee Act 1925 allows the executors named to accept and settle claims on behalf of the estate. This means the executors can continue a claim on behalf of a deceased client and accept any damages on behalf of the estate.

But would they want to continue a claim? Executors are under a duty to maximise the value of the estate as far as possible and therefore it is arguable that, where there is a legitimate and valuable claim, the executors would be bound to continue. However, if the executors are professional executors or a professional body, then they are unlikely to have any personal knowledge of the claim or the circumstances giving rise to the claim.

What happens if there is a Will and executors have not been appointed? Or if they are unwilling to act (i.e. renounce their position) or have predeceased your client? In these circumstances, the residual beneficiaries would be permitted to apply to be the estate’s personal representatives. This would then give them the powers of an executor and allow them to continue with the case on behalf of the deceased client.

It is still a common circumstance for someone to die without a Will. The person who is entitled to apply for letters of administration for an intestate estate would be the nearest living relative (as set out in Section 46 of the Administration of Estates Act 1925). This can cause problems in itself if the nearest relative is someone who was estranged from the deceased or if they are party to the proceedings. For example, your deceased client is pursuing a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 because her late husband did not make any financial provision under the terms of his Will, and left everything to their children. The children are the defendants to your deceased client’s claim but also the ones entitled to apply to become personal representatives of your deceased client’s estate. This quite clearly gives rise to a conflict of interest.

The court can assist in circumstances where a party to a claim has died pursuant to rule 19.8 of the Civil Procedure Rules 1999. This allows the court to allow a claim to continue in the absence of a person representing the estate or allow another person to be appointed. Any person appointed under this rule will have to act in the best interest of the estate and may want to apply for an indemnity against any adverse cost order (i.e. an order under Part 64 of the Civil Procedure Rules or better known as a Beddoe Order).

What if you do not know if your deceased client made a will or not? This may not have been at the forefront of your mind when taking instructions. Or, what happens if the client told you that a Will had been made but a copy cannot be located after their death? In these circumstances, all reasonable steps must be taken to locate a copy of the Will. This will involve either the deceased client’s next of kin, or the law firm acting for the deceased client, to carry out reasonable investigations to locate the Will.

This could involve contacting local law firms, investigations with the SRA’s Intervention Archives (which stores Wills for firms which have ceased practising) and, for all situations, a Certainty Will Search. Certainty is the Law Society’s endorsed provider of a National Will Register and Will search service. By carrying out a search with Certainty, you may be able to find a copy of the Will even if the original has been lost or maliciously destroyed.

If your client did create a Will and it is possible to secure a copy (usually through the results of the Certainty Will Search), then it will be fairly straightforward to establish the personal representatives of the estate. You can then contact them to discuss whether they would like to continue with the claim.

If the Certainty Will Search results and your other investigations do not provide details of any Will being made, then the deceased client’s nearest relative can proceed knowing that all reasonable steps have been taken to locate a Will. This is even where the deceased client had indicated that a Will had been made but a copy cannot be located through investigations and where a Certainty Will Search has been concluded.

Finally, it is important to bear in mind that the fundamental duty to keep all client’s affairs confidential (rule 4 of the SRA Code of Conduct) continues after your client passes away. The right passes to the personal representatives but bear in mind that an administrator’s powers date only from the grant of the letters of administration.

Anna Wonnacott is a contentious probate specialist in the wills, inheritance and trust disputes department at GA Solicitors, and is an editor for Certainty the National Will Register.

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