Whilst thankfully, it is a rare event, there are occasions when a client involved in a personal injury claim passes away prior to the claim being resolved. The future progress and direction of the claim thereafter depends upon a number of different factors.
If the deceased has left a Will, the Executor named in that Will is entitled to continue with the claim which he or she will effectively do so on behalf of the deceased. In essence, the Executor steps into the shoes of the deceased and all decisions in relation to the claim are made by the Executor. In practice, the Executor will usually take soundings from the immediate family and other interested parties including perhaps the beneficiaries of the deceased's estate before deciding on whether to continue with the action.
If a solicitor had already been appointed to deal with the claim prior to the pursuer passing away, the solicitor is entitled to deal with the Executor in all aspects of the claim as if he or she was dealing with the deceased. There is no need to look beyond the terms of the Will for authorisation to do so. If a court action has been raised, the solicitor will make an application to the Court requesting that the Executor is replaced as the party to the action in place of the deceased.
The primary duty of the Executor is to act in the best interests of the deceased. If the claim is ultimately successful, any award made will fall to be added to the estate of the deceased. Thereafter, the funds will be distributed in accordance with the wishes of the deceased as outlined in the Will. Any costs incurred in running the claim will be the ones whic can be properly chjarged to the estate of the deceased. Unless there is a reason to alter the terms of the original agreement between the deceased and the solicitor, the terms on which case is to be conducted by the solicitors will mirror the terms under which the solicitor acted on behalf of the deceased when alive.
It is, of course, possible that the reason for the deceased's death is fully or partly associated with the injury sustained by the deceased which is the subject of the existing claim. In such circumstances, as well as the Executor running the deceased's existing claim, the Executor may also now have a Loss of Society claim which is a claim he or she will make as an individual and will be one effectively claiming against the Defender for the untimely death of the deceased. Such a claim exists if the Executor is within a designated group of blood relatives. Not only will the Executor have such a claim but also a number of other close blood relatives of the decesased. For more information on these claims please refer to Loss due to the death of a loved one.
What happens if the deceased died without leaving a Will? In these circumstances, the deceased has not identified as an Executor. It is open to a member of the deceased's family to seek an appointment as an Executor. Such a person is called an Executor Dative. That appointment is one which is ratified by the court. Once appointed, the Executor Dative will effectively have the same powers and duties to act on the deceased's behalf as if he or she was appointed by the deceased in a Will. Such an application is relatively straightforward. It is possible there will be objections to the appointment of the Executor Dative which, inevitably will extend the period in which an appointment is made.
Assuming that the Executor or Executor Dative have confirmed they wish to continue with the deceased's claim, there are various factors he or she would want to take into account when considering the likliehood of success in such a claim. One of them, is, of course, the Defender's position in relation to this matter.
Under the usual rules of evidence, all facts in relation to any case require to be established by a witness or documentary evidence. If such evidence is not available due to the passing of the Pursuer, then it inevitably will make it more difficult for the case to be proved. There are occasions when the Pursuer, knowing they were dying, may have prepared an Affidavit which essentially is a sworn written statement of their evidence relevant to the case which can be relied upon by the court.
Given inevitable costs involved in litigation, it is important that an early decision is made by the Executor about whether the case ought to proceed and is likely to be successful. The early decision-making process will involve reviewing all available evidence and the quality of it to assess whether it is enough to establish the claim which of course must take into account the fact that the Pursuer has passed away. At the end of the day, the court will not be able to consider evidence relevant to the claim if it is not presented in accordance with the rules and evidence of procedure.
From a practical perspective, the decision about whether to continue with the claim generally will be after review of all the evidence and taking into account of the likely value of the award. It is likely that if the claim has a relatively modest value, the Executor will take a decision that the costs associated with continuing with the claim outweigh the rewards of being successful. If there are several beneficiaries who are entitled to recover from the estate and will obviously benefit from any successful claim, then again consideration of the value will be an important part of that process. It is very likely that their views will be sought.
Should you have any queries in relation to this matter, please do not hesitate to contact a member of our specialist team by either completing our online enquiry form or call us on 0800 988 8082.
