Tue | Aug 22, 2017

Laws of Eve | Can a beneficiary sue on behalf of an estate?

Published:Monday | September 19, 2016 | 9:00 AM

When a person dies, the individual who has the responsibility to protect the assets and the interests of the beneficiaries of the estate is the personal representative.

The personal representative will either be an A executor or an administrator, depending on whether the deceased left behind a will in which an executor was appointed or not.

Where there is a valid will under which at least one executor is named, that executor may step into the deceased person's shoes (so to speak). Where there is no will; a will but no executor named; or a will in which executors are named but they fail or refuse to take up their responsibility, the personal representative will be a court-appointed administrator.

There is a very important factor that distinguishes executors from administrators, It underscores the importance of having a valid will - an executor is able to take certain action immediately after a person dies, while an administrator must first obtain an order from the court appointing him as the administrator of the deceased person's estate before he has lawful authority to represent the estate.

Whether a personal representative is an executor or an administrator, his basic role is to collect all assets, pay all debts of the estate, and distribute the estate to the beneficiaries in accordance with the will of the deceased, or in keeping with the provisions of the law.

In some cases, a personal representative may have to commence court proceedings in order to protect the interests of the beneficiaries of the estate. Two common court actions are wrongful death claims (for example, if the deceased died in an accident) or claims against tenants occupying properties that belong to the estate.

There are times when a personal representative does not carry out his role properly, or at all, and a beneficiary may be inclined to commence proceedings in court to protect the estate. For such a beneficiary, there are three judgements that serve as reminders that any such claim must be carefully considered.

In the well-known case of Ingall v Moran [1944] KB 160, a father who sued as administrator of his son's estate before getting a grant of administration. The claim was stuck out as being a nullity. A beneficiary who files a claim in similar circumstances would suffer the same fate.

In Roberts v Gill & Co & Another [2010] UKSC 22, an aggrieved beneficiary sued the solicitors who represented the administrator of the estate. In dismissing the claim, the UK Supreme Court reinforced the point that, "... a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty owed by the trustees to the beneficiary to protect the trust estate or to protect the interests of the beneficiary in the trust estate."

Although the English High Court, in Haastrup v Okorie [2016] EWHC 12, accepted that there may be 'special circumstances' that entitle a beneficiary to bring a claim on behalf of an estate in which no court administrator has been appointed, the claim was struck out because no special circumstances were found to exist.

The best word of advice to a beneficiary who wants to take matters into his own hands is that he should first consider whether he has to take steps to be appointed as the administrator of the estate before commencing that court action.

• Sherry Ann McGregor is a Partner and Mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsfeve@gmail.com or lifestyle@gleanerjm.com.