PROBATE FEES,COSTS AND FATAL ACCIDENTS: SIX KEY POINTS

There has been major controversy recently about the proposed increase in probate fees. In particular there was some concern, expressed on twitter, that claimants could not afford to issue proceedings.  There are a number of points that need to be considered,  if there is a major increase in probate fees. In particular the Fatal Accidents Act has an important exception which means that, in some cases, a grant of probate is not necessary to bring an action.

1. YOU DON’T NEED A GRANT OF PROBATE TO ISSUE A FATAL ACCIDENT ACT CLAIM.

Simply read Section 2 of the Fatal Accidents Act 1976

“(1)The action shall be brought by and in the name of the executor or administrator of the deceased.
(2)If—
(a)there is no executor or administrator of the deceased, or
(b)no action is brought within six months after the death by and in the name of an executor or administrator of the deceased,
the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it.”

In other words:

(i) If there is no administrator or executor then any of the dependants can issue proceedings under the Fatal Accidents Act (on behalf of themselves and all the dependants).

(ii) If there is an administrator or executor and they do not bring an action within 6 months of the death then, again, any dependant can bring the action (and again on behalf of themselves and all the dependants).

2. THE PRACTICAL CONSEQUENCES OF A DEPENDANT BRINGING AN ACTION WITH NO GRANT OF PROBATE

A dependant brings the action solely under the Fatal Accident Act.  The dependant cannot bring an action on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934.  A dependant bringing an action under this section could not claim:

  • The deceased’s losses and expenses prior to death.
  • Pain and suffering prior to death.

However in many cases this will make no practical difference.  If death is instantaneous, or near instantaneous, there is no claim for pain and suffering. Further the awards for pain and suffering prior to death can be relatively modest.

In some cases however, there could be a major claim on behalf of the estate.  In industrial disease cases, for instance, there are often large claims for pain and suffering, losses and care provided prior to death.  In these cases probate is essential.

3. DEPENDANTS CAN CLAIM FUNERAL EXPENSES

Section 3(5) of the Act means that dependants, suing solely as dependants, can recover funeral expenses if they have paid those expenses.

(5)If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.

4.THE COSTS OF PROBATE MAY NOT BE RECOVERABLE AS A HEAD OF DAMAGES OR COSTS

In the recent case of Mosson -v- Spousal (London) Ltd [2015] EWHC 53 (QB) Mr Justice Garnham disallowed the costs of probate.

“Costs of Probate
  1. Mr Steinberg suggests that the £1,010 expended by the estate on probate is properly recoverable. Unlike funeral expenses, there is no reference to probate costs in the 1934 Act. I see no basis upon which such a claim could be read into the Act. I see no other potential basis for it and I disallow it.”

There is an argument that the costs of probate can be recovered if the sole reason for the grant being taken out is to bring the action.  The case of Thomas -v- Cunard White Start [1951] P.153 is often cited in support of this.

However in that case the expenses of the estate were increased as result of the estate having increased in value as a result of the award. The registrar had allowed the basic costs of obtaining probate but not the additional costs. It is difficult to read that as direct authority for the proposition that the costs of probate will be allowed.

In Read -v- Harries [1995] PIQR Q25  Morland J did not come to a definitive view but stated:

” My provisional view is that the probate costs are not recoverable either as a head of damages or as costs. The grant of probate was not obtained for the purposes of bringing this action in which the writ was not issued until September 13, 1989.”

In some cases this could lead to ridiculous results. Some actions brought solely under the Law Reform Act are of relatively low value. The costs of obtaining probate (if not recovered) could eat greatly into the damages recovered.

5. SO IF THERE IS NO GRANT OF PROBATE DIFFICULT DECISIONS MAY HAVE TO BE MADE

If probate fees have already been incurred, for reasons not related to the need to bring the action then they are unlikely to be recovered. Similarly it is far from certain that they costs will be recovered even if they are necessary to bring the action.

Consequently, if fees increase, then a difficult calculation will have to be made. Does the cost of probate exceed the additional value of a claim brought on behalf of the estate

6. BE VERY CAREFUL YOU HAVE TO GET THIS RIGHT?

Once proceedings are issued on behalf of dependants under the Act it is difficult to backtrack to claim an action on behalf of the estate. It is essential that the relevant provisions of the Act are pleaded.

Further be aware that this proviso only applies to Fatal Accident cases. In other actions an action on behalf of the estate which is not brought by the executors will be a nullity.

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