Kanabar v Kanabar [2026] EWCA Civ 582 – deadlock after death: intestate appellants in appeals against financial remedy orders

The Court of Appeal’s recent decision in Kanabar grapples with the difficult circumstances where an appellant has died intestate following permission to appeal against a financial remedies order being granted and nobody is willing to apply for letters of administration. The Court provides helpful guidance in navigating this deadlock.

Background

The parties in the case were:

• ‘H’ who was the deceased;
• ‘A’ who was H’s first wife and the appellant; and
• ‘B’ who was H’s widow and the second respondent

H and A had married in 1999 and had two daughters. They separated between 2006-2008. A decree absolute was granted in November 2010. In 2012, H married B and had one daughter with her.

H filed an application for financial relief in the divorce proceedings in September 2021. The key assets comprised three properties on the same road:

• Number 468 – the former matrimonial home which was purchased in the parties’ joint names in 2001. This had been occupied by H and B with their daughter since 2012.
• Number 472 – purchased prior to the marriage in 1998 in the joint names of H and his father. H’s case was that this property was subject to a life interest settlement made in 2005 purporting to transfer the beneficial interest from H and his father into the joint names of H’s two brothers.
• Number 470 – purchased after the marriage ended in 2021 in H’s sole name. It was suggested by H that his father had provided the funds to purchase the property and hence was entitled to the entire beneficial interest.

Although H’s father had initially indicated that he wanted to intervene in proceedings, no further steps were taken in this respect. Therefore, District Judge Birk refused H’s father’s application to intervene. A final order was made in November 2023 which provided that:

• Number 470 was to be sold, with the proceeds being paid to A.
• Number 468 was to be transferred to H,
• H was to retain an interest in Number 472.

At that hearing, H’s counsel was precluded from pursuing any argument as to the computation of any beneficial interest of H’s father. H filed a notice of appeal against the order in December 2023, following which permission to appeal was granted and a hearing was listed for September 2024 (which was subsequently adjourned). H however died intestate in July 2024. A hearing took place on 20 March 2025 at which A was represented by counsel and B was unrepresented. There was no personal representative present to represent H’s estate, and no letters of administration had been granted.

At the March hearing, the Judge noted that the absence of a personal representative presented a difficult procedural conundrum. The Judge highlighted the Supreme Court’s decision in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22, setting out that “procedurally financial remedy appeal proceedings survive the death of a party … so long as a suitable representative party is appointed to act on  behalf of the estate of any deceased party” (first instance decision, para [29]).

The Judge considered a range of procedural options which it was believed were available to the court, including: a further adjournment, dismissing the appeal and striking out under FPR 2010 r. 4.4(1) or under FPR r. 30.10. Having considered these options, the Judge was “satisfied that, notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed” and hence the court could hear the appeal on its merits (first instance decision, para [44]).

Grounds of Appeal

A therefore sought to appeal on four grounds:

(1) The court erred in not striking out the appeal in circumstances where H had died and none of those who would benefit from the success of the appeal were willing to administer his estate.

(2) The court was wrong to allow the appeal on the basis of assertions of beneficial interest that were improperly pleaded and would inevitably have failed. 

(3) The court was wrong to find that the district judge misapplied the law in respect of non-matrimonial property in circumstances where she rightly considered that she had to distribute that property to meet needs.

(4) In the alternative, having allowed the appeal, the court was wrong not to substitute a different order, thereby leaving the appellant with almost nothing from the marriage, and with no clear remedy under the Inheritance (Provision for Family and Dependents) Act 1975. The court should have made what provision for W it could in the circumstances.

The focus of the hearing before the Court of Appeal centred on grounds 1 and 4. Cobb LJ, when granting permission to appeal, observed in respect of ground 1 that this ground “raises an important point of principle and/or practice, namely what the court should do when the proposed  appellant (to whom permission to appeal from the decision of a District Judge has  been granted) dies intestate, and no person is in a position (or apparently willing) to take out letters of administration and/or authorised to prosecute the appeal before the Circuit Judge” (para [32]).

The Court of Appeal dealt with ground 4 then ground 1 and as such these will be addressed accordingly.

Ground 4

As set out above, the central question was whether an appeal, for which permission has been granted, survives the death of the appellant and if so, what the appellate court’s powers are. The Court of Appeal considered this question by looking to the seminal cases of Unger and Barder v Caluori [1988] AC 20.

The Court in Barder had considered whether leave to appeal out of time should be granted on the ground that assumptions made by the lower court at the time of their decision had been invalidated by subsequent intervening events. It was determined that leave could be granted, provided certain conditions were met (set out by the Court of Appeal at para [45]). Whilst the order was only set aside in Barder, subsequent decisions have demonstrated that courts are able to proceed to determine the order that should be made following the supervening events (those decisions are set out at para [46]).

In Unger, the court determined that the statutory provisions under both the Matrimonial Causes Act 1973 and the Matrimonial and Family Proceedings Act 1984 “created personal rights and obligations which can only be adjudicated between living parties” (Unger, para [49]). Similarly, this ‘orthodox understanding’ was to be found in the provisions of the Inheritance (Provision for Family and Dependents) Act 1975. Therefore, the court lacked jurisdiction to make an order for financial relief under the 1973 or 1984 Acts following the death of one of the parties, subject only to the discrete and limited exception provided by Barder. In Unger, Lord Legatt – reiterating the remarks of Mostyn J at first instance – described the current position as “illogical, arbitrary and capable of meting out great injustice” (Unger, para [109]) given that in light of White v White [2001] 1 AC 596 and Miller; McFarlane [2006] 2 AC 618 the orthodoxy has been challenged on the grounds that the law now recognises that a claim for financial remedies is brought as of right. However, the question of whether a claim for financial relief after a divorce can survive the against the estate of a deceased spouse did not fall for consideration. That was a matter, it was believed, for Parliament’s determination.

Baker LJ highlighted the inherent difficulty with the current position, distilling it down to being that “if the court’s powers are more limited in a ‘conventional’ appeal (where a party has died in circumstances which do not amount to a Barder event), this would leave the appeal court, after setting aside an order it has determined to be wrong, no longer capable of redetermining the claim at all” (para [57]). The court acknowledged that should the instant appeal turn on tis ground, then “the outcome would not be straightforward” (para [58]). The court was however able to circumvent this difficulty, setting out that there was a “substantial and … insurmountable impediment to the prosecution of the statutory right of appeal” (para [59]). Namely, there being no letter of administration granted in respect of H’s estate. This fell to be considered underground 1.

Ground 1

The court highlighted from the outset that a party who is entitled to a grant of administration cannot do anything as administrator before a grant is obtained – administrators derive their authority from their appointment by the court. In Piggott v Aulton (deceased) [2003] EWCA Civ 23 it was made clear that the estate of a deceased is not an effective party against whom a dispute could be determined. The natural personality of the deceased ends on their death.

Under CPR 1998 r.19.12, the court may proceed in the absence of a person representing the estate of the deceased or a person appointed to represent the estate of the deceased. However, there were two key issues which stemmed from this. Firstly, Baker LJ highlighted that the intended application of that rule was meant to be under relatively straightforward claims, of which this was not. On that basis, it would be inappropriate to proceed without the estate being represented in any event. Secondly, and more fundamentally, CPR 19.12 does not apply to family proceedings. Whether “this omission is deliberate or inadvertent”, it could nevertheless “be a reflection of the “orthodox understanding” that claims for financial remedies do not survive the death of one of the parties” (para [69]).

The Court also considered the power to proceed in a party’s absence under s.31F(7) of the 1984 Act, and the power to proceed in a party’s absence following them not attending under FPR 18.12. It was recognised that these powers could theoretically be stretched to cases where a party has died but, in the current circumstances, a party “was not merely absent, but non-existent” (para [71]).

For these reasons, the Judge was wrong to have concluded that “notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed”. Quite simply, the appeal was not properly constituted as there was not an appellant with legal personality. Baker LJ emphasised that the Judge could have adjourned the appeal to allow more time to apply for letters of administration, but this route was not taken.

The appropriate course therefore, in the court’s view, would have been to strike out the appeal. Whilst courts have the power under FPR r.4.4(1)(b) to strike out a statement of case if it appears the statement of case is an abuse of process, there was nothing present in the conduct of proceedings which could be realistically described as an abuse of process. Rather, the absence of a legal personality able to pursue the appeal would have amounted to a compelling reason for striking out the appeal notice under FPR 30.10.

Conclusion

The Court allowed the appeal on ground 1 and restored the order of the district judge.

In relation to ground 4, Baker LJ acknowledged both the concerns raised by Mostyn J and Lord Legatt in Unger and the difficulty which the current position creates. With the government having confirmed a consultation on matrimonial finance and cohabitation law, this was deemed to potentially provide a more appropriate “opportunity for a review of the circumstances in which claims for financial remedies after relationship breakdown survive the death of one of the parties” (para [80]).

Only time will tell whether this inherent complexity will be taken head-on.

Key Takeaways

• In the absence of an appellant with legal personality, an appeal is not properly constituted.
• Practitioners should move quickly to address representation issues following a litigant’s death, including considering adjournments to allow time for letters of administration to be obtained
• Should letters of administration not be obtained, and hence there is no legally constituted appellant, strike out is likely to be the most appropriate route for resolution