Haastrup v Okorie & Ors

A beneficiary of an unadministered estate has no proprietary interest in any particular estate asset and cannot ordinarily sue personally for wrongs allegedly done to the estate. The proper claimant is the personal representative. CPR r 19.8(1) does not cure a claim issued after the deceased’s death without a personal representative. Protection may instead be sought through a limited grant or the appointment of a receiver. An executor de son tort must have intermeddled with the deceased’s affairs after death in a way showing an assumption of executorial authority.

The claimant alleged that the first defendant had misused a power of attorney granted by the deceased and sought relief concerning assets said to belong to the deceased’s estate. He claimed to be the deceased’s son and beneficiary, but had not obtained a valid grant of representation. The first defendant applied to strike out the claim, alternatively for summary judgment. The claimant applied to be appointed to represent the estate under CPR r 19.8(1), or for the claim to proceed without a representative. The issues concerned the effect of CPR r 19.8, the special-circumstances exception, and executor de son tort.

1. Claim struck out. The claim disclosed no reasonable grounds for bringing it and was struck out in its entirety under CPR r 3.4(2)(a). The claimant’s application for appointment as representative was dismissed. The court indicated that it would also have granted summary judgment for the first defendant.
2. CPR r 19.8(1) applies where a claim has commenced and an interested person subsequently dies. It does not permit a claimant to issue proceedings after the deceased’s death and then obtain appointment or proceed without a representative. The reasoning in Millburn-Snell v Evans [2012] 1 WLR 41 was part of its ratio and binding.
3. The absence of a personal representative did not itself constitute special circumstances. A beneficiary’s remedy is ordinarily a claim for due administration. Protection may be obtained by a limited grant, including ad colligenda bona, or by appointment of a receiver.
4. Until administration is complete, beneficiaries have no sufficient proprietary interest in particular estate assets to sue for their loss or to take possession. The relevant interest is a chose in action for proper administration.
5. The executor de son tort argument failed. The doctrine requires post-death intermeddling showing an assumption of executorial authority. Acts during the deceased’s lifetime do not suffice.
6. Section 28 of the Administration of Estates Act 1925 does not define or codify the doctrine. The proposed corporate-veil argument also failed under Prest v Petrodel Resources Ltd [2013] 2 AC 415.

First-instance decision. The judgment records a pending appeal against earlier orders, but that appeal was not determined by this judgment.