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Hello,
Can you please look at this situation which is bringing some confusion, as to whether a grant of probate is needed, for a Son to bring a personal injury claim, under the FATAL ACCIDENTS ACT 1976, and can you please these 2 questions of concern.
QUICK SUMMARY OF CASE:
To summarize, it is a potential claim for clinical negligence,
where a father’s condition deteriorated due to the hospital doing the wrong tests,
This lead them to administer the wrong medication, causing his condition to worsen and leading him to his death.
Had they done the correct tests, then the correct treatment could have been given and he could have survived.
- Lets assume we will be able to prove Breach of duty
and we will be able to prove causation:
Please can you assist with the following questions:
The questions are mainly about, the son making a claim in his own personal capacity, and if a probate is required.
OTHER FACTS
He left a will, his wife is alive, and he has 2 sons both above 30 years old.
The widow mum, xxxxxx is alive, but does NOT want to make a claim.
The Son wants to make a claim, in their own name (as an independent claim)
* a Claim in their personal capacity
* the claim will be made under the fatal accidents act 1976
* Can one of the sons bring a claim, in their personal capacity?
* If the son brings a claim, he will NOT be acting on behalf of the estate, but just in his personal capacity, so,..
* Will they need to take out a Grant of probate?
* From the Will, the son does NOT want to access the fathers Estate/ Assets/ Bank accounts etc,
he will NOT be authorizing them. (The will, will just be used to prove that he is the Son of the father)
* Both sons are above 30 years old,
They Don't want to make the claim under the any other act, but Only the 'fatal accidents act'
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Here is the WILL wording, and also the the fatal accidents act wording, and the 2-3 questions I would like assistance please,
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
{WORDING WRITTEN IN THE DECEASED WILL}
APPOINTMENT OF EXECUTOR
I Appoint my wife xxxxxxxxxxxx to be the executor of my Will
and if my Executor shall predecease me or die before proving my Will
'or' for any other reason be unable or unwilling to act as executor,
I appoint my son xxxxxxxxxxx (of address xyz)
and my son xxxxxxxxxxx (of address xyz)
to act as 'executors' in substitute
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
FATAL ACCIDENTS ACT 1977
=======================
2 Persons entitled to bring the action.
(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.
(3) Not more than one action shall lie for and in respect of the same subject matter of complaint.
(4) The plaintiff in the action shall be required to deliver to the defendant or his solicitor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Here are the questions:
QUESTION 1) IS A PROBATE EVEN NEEDED ?
Can that son (who is named on the will) make a claim on against the hospital, on their personal capacity, WITHOUT Obtaining a grant of probate?
(Keep in mind, they will make a claim in their 'personal capacity' ....NOT on behalf of the estate)
which one of these statements is correct
a) YES they can bring a claim, but they would have to take out a grant of probate, to claim anything atal:
b) No they cannot bring a claim, unless they take out a probate (Similar to a),
c) YES they can bring a claim, WITHOUT A GRANT OF PROBATE, but they will NOT be able to claim on behalf of the estate
(so their amount of damages will be smaller, as they cannot claim on behalf of the estate) and their amount of damages will be minimum.
d) Other? (your own version)
^^ Which one of the above statements is correct? a) or b) or c) ??
- - - - - - - - - - - - - - - - - - - - - - - -
QUESTION 2) PAST PRECEDENT CASES?
Do you know any previous common precedent cases, which fit into this above scenario?
eg 'Claimants name' VS 'defendants name'
Where through clinical negligence (preferably) a child of a deceased
has bought a claim in their personal capacity, (an independent claim)
-which they were NOT bringing on behalf of the estate, but just for their own personal capacity.
with these following facts:
* Deceased left a will, with his wife as the Primary executor,
* This child was named as a secondary executor
* The child bought a claim in their own personal capacity, (claiming
his own personal damages)
* No grant of probate was made, and one Wasn't going to be made
* The claim was NOT BOUGHT on behalf of the estate.
QUESTION 2) PAST PRECEDENT CASES?
Can you recall/remember any past common precedent cases, which you remember which fit the above description ?
* Especially ones which have gone to appeal, and been approved for their case to carry on?
- - - - - - - - - - - - - - - - - - - - - - - -
QUESTION 3) – DAMAGES TO BE CLAIMED ?
If the claim is bought in their own personal capacity, (Not on behalf of the estate)
So they can claim their own personal damages, then what damages will be able to be claimed, and what ones Not?
(I know that a son cannot claim the bereavement award of £12,000), which other things cannot be claimed? And which damages ‘can’ be claimed, with the son bringing a sole independent claim ?
- - - - - - - - - - - - - - - - - - - - - - - -
Thanks in advance
Can you please look at this situation which is bringing some confusion, as to whether a grant of probate is needed, for a Son to bring a personal injury claim, under the FATAL ACCIDENTS ACT 1976, and can you please these 2 questions of concern.
QUICK SUMMARY OF CASE:
To summarize, it is a potential claim for clinical negligence,
where a father’s condition deteriorated due to the hospital doing the wrong tests,
This lead them to administer the wrong medication, causing his condition to worsen and leading him to his death.
Had they done the correct tests, then the correct treatment could have been given and he could have survived.
- Lets assume we will be able to prove Breach of duty
and we will be able to prove causation:
Please can you assist with the following questions:
The questions are mainly about, the son making a claim in his own personal capacity, and if a probate is required.
OTHER FACTS
He left a will, his wife is alive, and he has 2 sons both above 30 years old.
The widow mum, xxxxxx is alive, but does NOT want to make a claim.
The Son wants to make a claim, in their own name (as an independent claim)
* a Claim in their personal capacity
* the claim will be made under the fatal accidents act 1976
* Can one of the sons bring a claim, in their personal capacity?
* If the son brings a claim, he will NOT be acting on behalf of the estate, but just in his personal capacity, so,..
* Will they need to take out a Grant of probate?
* From the Will, the son does NOT want to access the fathers Estate/ Assets/ Bank accounts etc,
he will NOT be authorizing them. (The will, will just be used to prove that he is the Son of the father)
* Both sons are above 30 years old,
They Don't want to make the claim under the any other act, but Only the 'fatal accidents act'
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Here is the WILL wording, and also the the fatal accidents act wording, and the 2-3 questions I would like assistance please,
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
{WORDING WRITTEN IN THE DECEASED WILL}
APPOINTMENT OF EXECUTOR
I Appoint my wife xxxxxxxxxxxx to be the executor of my Will
and if my Executor shall predecease me or die before proving my Will
'or' for any other reason be unable or unwilling to act as executor,
I appoint my son xxxxxxxxxxx (of address xyz)
and my son xxxxxxxxxxx (of address xyz)
to act as 'executors' in substitute
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
FATAL ACCIDENTS ACT 1977
=======================
2 Persons entitled to bring the action.
(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.
(3) Not more than one action shall lie for and in respect of the same subject matter of complaint.
(4) The plaintiff in the action shall be required to deliver to the defendant or his solicitor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Here are the questions:
QUESTION 1) IS A PROBATE EVEN NEEDED ?
Can that son (who is named on the will) make a claim on against the hospital, on their personal capacity, WITHOUT Obtaining a grant of probate?
(Keep in mind, they will make a claim in their 'personal capacity' ....NOT on behalf of the estate)
which one of these statements is correct
a) YES they can bring a claim, but they would have to take out a grant of probate, to claim anything atal:
b) No they cannot bring a claim, unless they take out a probate (Similar to a),
c) YES they can bring a claim, WITHOUT A GRANT OF PROBATE, but they will NOT be able to claim on behalf of the estate
(so their amount of damages will be smaller, as they cannot claim on behalf of the estate) and their amount of damages will be minimum.
d) Other? (your own version)
^^ Which one of the above statements is correct? a) or b) or c) ??
- - - - - - - - - - - - - - - - - - - - - - - -
QUESTION 2) PAST PRECEDENT CASES?
Do you know any previous common precedent cases, which fit into this above scenario?
eg 'Claimants name' VS 'defendants name'
Where through clinical negligence (preferably) a child of a deceased
has bought a claim in their personal capacity, (an independent claim)
-which they were NOT bringing on behalf of the estate, but just for their own personal capacity.
with these following facts:
* Deceased left a will, with his wife as the Primary executor,
* This child was named as a secondary executor
* The child bought a claim in their own personal capacity, (claiming
his own personal damages)
* No grant of probate was made, and one Wasn't going to be made
* The claim was NOT BOUGHT on behalf of the estate.
QUESTION 2) PAST PRECEDENT CASES?
Can you recall/remember any past common precedent cases, which you remember which fit the above description ?
* Especially ones which have gone to appeal, and been approved for their case to carry on?
- - - - - - - - - - - - - - - - - - - - - - - -
QUESTION 3) – DAMAGES TO BE CLAIMED ?
If the claim is bought in their own personal capacity, (Not on behalf of the estate)
So they can claim their own personal damages, then what damages will be able to be claimed, and what ones Not?
(I know that a son cannot claim the bereavement award of £12,000), which other things cannot be claimed? And which damages ‘can’ be claimed, with the son bringing a sole independent claim ?
- - - - - - - - - - - - - - - - - - - - - - - -
Thanks in advance
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