Probate Law Complex Sotuation

dee8212

My sister had learning and physical disabilities, she was left with fatal injuries due to someone’s negligence. We opened a claim as a litigation friend as she did not have the capacity to do this herself. For the same reason she could not make a will and passed away before the claim was settled. My mum then obtained letters of administration and reopened her case. My mum then died of cancer before the claim was settled leaving a will naming me and my younger sister as executors. We are now being told we cannot continue the claim as the chain of representation has been broken and only her father can claim (he has been absent since 1979 and we have no contact for him) I have sought advice from other solicitors who disagree with the current solicitors. Does anyone know who is correct here? TIA

getmore4less

The chain exists through named executors in wills so the chain back to your mum exists.
Which solicitor is saying the chain has broken who were they representing?
I don't know if the backward chain can go up to an intestate.

http://www.legislation.gov.uk/ukpga/Geo5/15-16/23/part/II/crossheading/general-provisions
That legislation only talks about executors, your mum was not an executor of your sister estate

dee8212

The original solicitors, who were representing my sister initially. Original solicitors are saying letters of administration is not the same as a grant of probate and therefore we are unable to claim. Thank you

getmore4less

you now need ask the other solicitors why they think the solicitor can continue to act on behalf of your mother making a claim as administrator of the sisters estate as that part of the chain is valid. 

dee8212

I’m not sure I understand what you’re saying. The original solicitors are saying the chain is broken because my sister died intestate. The new solicitors are saying it’s not broken because my mum was granted letters of administration and we are her executors.

getmore4less

Your second solicitor need to point out to the first where they are interpreting the law wrongly.

or

you move the case to one that will progress it if the cuurent one continues to refuse to act.

xylophone

The new solicitors are saying it’s not broken because my mum was granted letters of administration and we are her executors.

Seems the logical answer  - see

https://www.probate-a-will.co.uk/2017/10/chain-of-representation/#:~:text=Chain%20of%20Representation-,Chain%20of%20Representation,representation%20is%20granted%20to%20you.

"When named as an Executor under a Grant of Probate or an Administrator under Letters of Administration you are the person who is representing the Estate of the deceased person. Thus representation is granted to you. If something happens to you then you need to have something in place that continues that representation; i.e the chain of representation. This has to be a Will. If you not have a Will in place, you die intestate, then you break the Chain of Representation."

Your mother was named Administrator.  She left a Will.

dee8212

Thank you both. It’s seems logical to me that as my mother left a will that we should be able to act on her behalf for anything she would have been able to do. But they are adamant that her will only gives us the right to her estate and not my sisters as she died intestate. It’s so frustrating as the law prohibited my sister from making a will and now we are facing the prospect of no justice for legally or criminally

dee8212

Wow, no need to be so rude and judgemental. The qualified professionals are saying different things, they can’t both be right but both professionals. I asked in the hope maybe someone had had a similar situation and therefore could advise how it worked out for them. I have been ‘warned’ by the original solicitors that we will probably get so far down the line and the second solicitors will realise they are wrong. If someone else has successfully pursued a claim in the same situation it would give reassurance that it can be done. I have lost my sister and my mum very close together in tragic circumstances and I’m just trying to do my best. Your comment was not helpful.

pphillips

dee8212 said:

Thank you both. It’s seems logical to me that as my mother left a will that we should be able to act on her behalf for anything she would have been able to do. But they are adamant that her will only gives us the right to her estate and not my sisters as she died intestate. It’s so frustrating as the law prohibited my sister from making a will and now we are facing the prospect of no justice for legally or criminally

The law didn't prevent your sister making a will as this could have been achieved through the court of protection, it just makes the process much more complicated and expensive.

getmore4less

I would not give up yet as you say you had two different answers from those that should know, so some independent research is sensible option to try and understand the arguments from each side.


The key is can those defending the claim use this to stop it? 
Have they said that yet?

I would try the legal board on lemonfool, there are some real solicitors that post there that may understand the technicalities of this section of law(some are probate specialists)
There is also the STEP forums that you can read to see if you can find any clues.

I would also check with both solicitors if they have had council on this point of law.
(Got their barristers to have a look)