Making a medical negligence or a fatal accident compensation claim following the loss of a loved one can be a difficult experience for families.
The sudden and unexpected loss of a loved one can be devastating and the litigation process can be daunting, but at Hudgell Solicitors part of our role as experienced clinical negligence and fatal accident lawyers is to make the process as stress-free as possible.
One issue that often arises in a claim involving a deceased person is that they did not leave a Will.
In such cases their surviving spouse or dependants may need to obtain a Grant of Representation before a medical negligence or fatal accident claim can conclude or sometimes even progress.
However, it is important that the right person applies for the Grant of Representation. Not doing so can result in delays which can take several months to resolve.
Hudgell Solicitors’ advice would be that, if you are thinking of pursuing a claim on behalf of the Estate of a loved one, ensure that a valid Will is in place and/or that a Grant of Representation application is underway.
A Grant of Representation: What is it and who should apply for one?
What is a Grant of Representation?
A Grant of Representation is a legal document which confirms that an individual has the right to handle the Estate’s assets to protect the beneficiaries, and to “administer” the Estate, which includes distributing any assets and/or proceeds of a claim to the correct beneficiaries or dependants.
The Grant is either a Grant of Probate (if there was a Will) or a Grant of Letters of Administration (if there was not a Will).
Do I need a Grant of Representation?
If Court Proceedings were commenced, such as in the case of a medical negligence or fatal accident compensation claim, the individual(s) bringing the claim would need to have obtained a Grant of Representation.
Why are Wills and Grant of Representation important in medical negligence and fatal accident compensation claims?
When a medical negligence or fatal accident claim is brought on behalf of someone who has passed away the claim is made on behalf of their Estate.
For the claim to continue it must be established that the person representing the Estate is the correct person to do so. A claim cannot progress unless this information has been confirmed.
What if there is a Will?
If the Deceased left a Will then the correct person to bring forth a claim would be the Executor(s) of that Will.
This does not necessarily mean that the Executor is entitled to any compensation, as this will generally fall to those named as beneficiaries in the Will and sometimes other dependents, but it does mean they have the legal right to make formal decisions to progress the claim.
For example: Mr X passes away, his Will names his only daughter, Ms Y, as the Executor of his Will, but names his wife, Mrs X, as the sole beneficiary.
Ms Y has the legal standing to bring the medical negligence or fatal accident claim on behalf of her late father’s Estate.
Should the claim prove successful, the compensation will pass to the Estate of Mr X.
Ms Y, as the Executor, will then make arrangements for the compensation to pass to Mrs X in line with the Will.
What if there is no Will?
If there is no Will then the responsibility falls to the deceased’s surviving spouse or dependants, this follows the ‘Rules of Intestacy’, and it is likely that a Grant of Representation will need to be obtained.
For example: If Mr X passes away and does not leave a Will, his wife Mrs X would be the correct person to bring the claim as she is first in line in the Rules of Intestacy. Mrs X would also need to apply for a Grant of Representation in order to provide her with legal standing to bring the claim.
How do I get a Grant of Representation?
To get a Grant of Representation, an application must be made to the Probate Registry. Once the Grant has been issued, you will be allowed to deal with the deceased’s Estate.
You can make the application yourself, or you can ask a solicitor to help you.
When should you apply for a Grant of Representation?
At Hudgell Solicitors we are finding that a Grant of Representation is being requested by other parties, such as the Defendants and their representatives, before a claim can conclude, even if Court Proceedings have not commenced.
This understandably can cause significant delays to claims being concluded and thus cause further distress to families.
We are also experiencing delays on cases where applications have been made to the Probate Registry for a Grant, due to backlogs caused by the pandemic.
Therefore, it is becoming increasingly important that in cases where an individual has passed away, that a Will and/or Grant of Representation is in place before a claim and/or Court Proceedings are considered.
This is important as individuals may not automatically have the legal standing to bring a claim on behalf of the Estate of a loved one.
