What Happens When A Party In (Potential) Litigation Dies

Litigation – whether potential or actual, can be costly and lengthy but what happens when one of the parties dies?

In certain circumstances the court has the power to substitute and appoint a personal representative for the estate.

The rules however depend on whether

• Proceedings are already underway
• Whether the deceased was the (potential) Claimant or Defendant

Issuing a Claim

The authority of an executor drives from the will itself so there is no need for them to have first obtained a Grant of Probate before issuing a claim.

This is established authority from the early case of Chetty v Chetty (1916). However, a Grant of Probate is required to prove title so no order or judgment can be made by a court without the Grant of Probate.

Where there is no will, an administrator’s standing to issue court proceedings will arise only once Letters of Administration have been obtained as confirmed in the case of Jennison v Jennison (2023).

Any claim issued prior to letters of administration will therefore be invalid.

Strangely, if the deceased was a potential claimant there is no provision for the court to appoint a personal representative (under CPR 19.12(1)).

Defending a Claim

As above, a Grant of Probate will be required before any proceedings can be finalised against an executor.

Under CPR 19.12 (2) a court has the power to appoint a personal representative if the deceased was a potential defendant to a claim so where no proceedings have yet been bought against the estate.

It is not entirely clear why there is this distinction in the rules that allows a potential claim to be bought against a deceased but not for the deceased.

Substitution during Proceedings

If proceedings are already underway, then the court has power under CPR 19.12 (1) to order that

(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.

Given the ambiguity above, some considered that CPR 19.12 (1) allowed the court to appoint a legal representative to bring a potential claim for the estate.

But recent case of Bourlakova v Bourlakov and others (2024) provided clarification that CPR 19.12 could only be used for cases already issued and not potential cases (where the deceased was/would have been the claimant)

On its terms, CPR, Part 19.12(1) is plainly concerned with the appointment of representatives in the context of claims in this jurisdiction already on foot when the relevant interested person died. For a claim to proceed or for someone to have had an interest in it, it must have been ongoing when the person interested in it died.

The jurisdictional threshold for the engagement of CPR, Part 19.12(1) requires (i) an existing validly instituted claim and (ii) the relevant deceased person to have had an interest in that claim.

Alternatives

So, to bring a claim (or conclude a claim) you will need to obtain a Grant of Probate or letters of administrations.

However, this could take some time to obtain. If there is urgency in preserving, bringing or defending a claim relating to the estate, then you can apply for a limited grant (grant pendent lite (pending suit)) which will last until the claim has been determined/settled. A cessate (second) grant would then need to be obtained in due course to complete the estate administration including distribution.

During litigation, there may also be a need to apply for a limited grant (a grant ad colligenda) to preserve assets in the estate.

Alternatively, beneficiaries could in their own personal right bring a derivative claim.

As can be seen above, this is a highly complex and technical area and appropriate legal advice should be sought at the earliest opportunity so that any (potential) claim is not prejudiced.

If you’re dealing with a dispute where one of the parties has passed away, navigating the legal complexities can be challenging. Our experienced dispute resolution experts are here to guide you through every step, from understanding court rules to obtaining the necessary grants and ensuring your claim is protected. Contact us today on 0330 822 3451 for tailored legal advice and support or request a callback.