Ask Ollie – Does a legal claim endure after death?

18 / 06 / 2020

My father was owed £300,000 by a former business colleague and issued a claim in the High Court to recover the debt.  Sadly he died before the case could be heard. Please would you let me know what we should do next?

Most claims survive an individual so the benefit of any claim your father had against his former business colleague will pass to his estate. It is likely that the Court will “stay” proceedings when it is informed of your father’s death which means proceedings are paused until there is someone with “legal standing” who can continue the claim.

If your father left a Will, the executors named in the Will step into your late father’s shoes and have the legal standing to pursue the claim for the benefit of his estate from the date of his death.  If there is no Will, there is nobody with legal standing until the Probate Registry makes a Grant of Letters of Administration.

Assuming that there is a Will, it is highly likely that the Court will require a Grant of Probate before substituting the executors, because the Grant will “prove” the validity of the Will.  As it will take many months to obtain a Grant, the executors, or anybody else with an interest, may ask the Court to make an Order for the claim to continue or for someone to be appointed as the representative of the estate pending the Grant of Probate. 

Whilst the executors have authority to continue litigation, they must consider whether pursuing the claim is in the beneficiaries’ best interests. For example if the outcome of the claim is uncertain or if the estate will be liable for significant costs, the executors should apply to the Court for directions.  Provided that the Court agrees that the litigation should continue, the executors will be able to claim any costs incurred from the estate and are not at risk of personal liability.