Legal Update
‘NOT WILLING TO ACT’: assessing the court’s power to appoint personal representatives to the deceased
14 December 2022

‘NOT WILLING TO ACT’: assessing the court’s power to appoint personal representatives to the deceased

Author: Robert Allen

Imagine this scenario:

You are owed money by a business which has since fallen into liquidation.  Fortunately for you, the director of said business signed a personal guarantee on the debt.  Less fortunately for all involved, said director of said business has passed away.  You seek out an executor to no avail; he died intestate.

Thankfully for you, CPR 19.8 provides for such a circumstance.  You can make an application for an order to appoint a personal representative (PR) to the deceased’s estate, pursuant to r.19.8 (2) (b) (ii):

‘19.8 (2) Where a defendant against whom a claim could have been brought has died and-

(a) […]

(b) a grant of probate or administration has not been made-

(i) the claim must be brought against “the estate of” the deceased; and

(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.’

The court’s broad powers in granting PR appointments were summarised by Walker LJ in Berti v. Steele Raymond:[1]

‘[I]t is apparent from the rule [r.19.8] as a whole that it gives the court quite wide powers to dispense with the need for a formal grant of probate or letters of administration after the death of a party.  It seems to recognise that, especially with relatively small claims, the need for a formal grant may be disproportionate and cause unnecessary delay and expense.’

The typical approach is that ‘[T]he best person for the court to appoint under r.19.8 is the person most likely to have a right to apply for a formal grant of representation.[2]  That might be a spouse or civil partner, a child, or a parent.  Such appointments are made ad litem.[3]

Returning to the scenario I posed, you know your late debtor leaves behind a widow.  She, surely, would make a suitable appointment.  There is only one sticking point: she has no desire to act in such a capacity.  Can the court compel her?

Such was the case in the recently heard Ghazanfarihashemi and Ghanbariannaeeni v. The Estate of Mr Mohammad Reza Kanji (Deceased) and Ors[4] in the King’s Bench Division, in which Michael James acted for the proposed appointee, a Mrs J.

The claimants sought that the court appoint the deceased defendant’s widow, Mrs J, as PR to his estate.  There were various factors which rendered Mrs J ill-suited to being drafted into the proceedings.  She spoke limited English and would require the support of both an interpreter and her children.  She had little to no knowledge of her late husband’s financial affairs.  She was, by her own account, far from equipped to participate in complex commercial proceedings.  Yet even more fundamentally than all the above, she flatly did not wish to have any involvement.

The court can, on the reading of r.19.8 (2), appoint anyone it likes.  The rule provides for an unfettered discretionary power.  And there is radio silence on consent to be joined as PR in the White Book commentary.[5]  Perhaps this is to be expected, given that r.19.8 is generally exercised in circumstances where the PR is ready, willing, and waiting to act.

But none of this assists the court when it comes to Mrs J.  What is the right approach when dealing with those in her position?  Does the court have the power to appoint a PR against their will?  If the court has power, ought the court to exercise the power in the above circumstances?  Would it be in the parties’ interests to do so?  Could such an order even be enforced?  To begin to answer these questions, one must be prepared to delve back to some of the older authorities.

History of PR consent

Judges were opining on PR consent long before r.19.8 came to be drafted.  A prior incarnation of the rule was s.XLIV[6] Court of Chancery Procedure Act 1852 c.86.  S.XLIV provided that the court may proceed in any claim without a PR, or the court may appoint one:

‘If in any Suit or other Proceeding before the Court it shall appear to the Court that any deceased Person who was interested in the Matters in question has no legal personal Representative, it shall be lawful for the Court either to proceed in the Absence of any Person representing the Estate of such deceased Person, or to appoint some Person to represent such Estate for all the Purposes of the Suit or other Proceeding, on such Notice to such Person or Persons, if any, as the Court shall think fit, either, specially or generally by public Advertisements; and the Order so made by the said Court, and any Orders consequent thereon, shall bind the Estate of such deceased Person in the same Manner in every respect as if there had been a duly constituted legal personal Representative of such deceased Person, and such legal personal Representative had been a Party to the Suit or Proceeding, and had duly appeared and submitted his Rights and Interests to the Protection of the Court.’

S.XLIV was considered in Hill v. Bonner[7], when the claimant sought that a Mr Hoper be appointed PR.  It is recorded that Mr Hoper objected to the appointment.  Sir John Romilly MR held: ‘I cannot appoint a person as a representative who is not willing to act.’  Those words made plain that the court considered consent, beyond being a mere factor for the court to consider, a bar to appointment entirely.

Consent was held as a prerequisite to appointment, with reference to Hill, in Joint Stock Discount Co. v. Brown (No. 2)[8].  A breach of trust claim was brought against a list of defendant directors.  Two of whom, Mr Dent and Mr White, subsequently died abroad.  Mr White’s widow appeared to have been appointed his executrix.  She declined to be involved.  The court determined that a consenting surviving defendant, Mr Biden, should be appointed PR.  Sir William Milbourne James VC held:[9]

‘I cannot appoint a person to be representative of the estate against his will. Consequently I am unable to make the order

which I proposed at first; and I will accordingly do this: I will appoint Mr Biden, who consents, to be the representative, unless

within fourteen days after service of the notice, the widow of Mr

White, and his solicitors on the record, or either of them, should

appear and elect to represent the estate, in which case the widow

and the solicitors, or she, or they, will be appointed.’

S.XLIV was later incorporated into the Rules of the Supreme Court Order 16, Rule 46:

‘If in any suit... it shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court... to appoint some person to represent such estate for all.’

Order 16, Rule 46 was sought in Pratt v. London Passenger Transport Board.[10]  The question in that case was whether the Official Solicitor could be appointed as representative of an estate of a third person, whom the defendants blamed for an accident, without his consent.  It was held they could not.

Pratt was to be affirmed in the comparatively recent authority, Lean v. Alston.[11]  Since Lean, the reported authorities do not appear to consider PR consent at all.  Pratt is referenced in Williams, Mortimer & Sunnucks, Executors, Administrators and Probate[12].  It is plain from the wording of the extract that this issue lacks clarity:

Presumably no person will be appointed under CPR r.19.8 (2) (b) (ii) unless his consent is first obtained, as was the position under the corresponding provision of the RSC (Pratt v L.P.T.B. [1937] 1 All E.R. 473).’

(Emphasis added)

Whilst the current r.19.8 (2), nor any of its previous forms, expressly require consent, case law since Hill and Joint Stock signals that consent is fundamental and that the court does not have the power compel a person to act without it.

The outcome in Ghazanfarihashemi

On hearing the claimants’ application, and on considering the submissions advanced on behalf of Mrs J on her lack of consent and the authorities, Master Dagnall held that Mrs J was an inappropriate person to be appointed as PR and declined to grant the order.

Given that the straightforward nature of the assets sought by the claimants, the court determined that the claim would not require the input of the Official Solicitor.[13] Instead, the court allowed the claim to proceed against the defendant in the absence a personal representative.[14]  The claimants were ordered to give notice of the date of the upcoming hearing by placing advertisements in one local and one national newspaper.[15]

Just as Mr Hoper had been over a century and a half prior in Hill, Mrs J was awarded her costs.

Why consent is fundamental

It is inevitable that consent is a factor the court will have at the forefront of its mind when considering PR appointment.  A PR will be subject to the same fiduciary duties as an executor for the purposes of the litigation.  The court cannot be certain that those duties will be satisfied by persons who are compelled to act against their will.  And it is not in the interests of the court to grant an order which requires continuous surveillance.

Moreover, it is not in accordance with the overriding objective for the court to grant orders which prove unenforceable.  Just as an executor has the power to renounce their status, so too, by extension, does a PR.  The court could not prevent a PR who it so appoints from renouncing their newly held position as soon as the order is made.  That a person does not consent is a clear indication they are likely to take such a course of action.

As in Ghazanfarihashemi itself, in cases where there is a lack of consent, it follows that there may well be reasons to justify that position, which themselves make appointment undesirable.  For example, even if Mrs J had consented, the court would have been reluctant to appoint her under circumstances where she required the assistance of translator to carry out her duties.  Such reasons should not be allowed to cloud the fundamental position on consent.  Regardless of the capacity of a person, the case law is clear: PR appointments are to be made on a voluntary basis.

Providing future clarity

Perhaps r.19.8 (2) should incorporate an express requirement for consent so as to accurately reflect the approach taken in case law since Hill and Joint Stock.  All that is necessary is the inclusion of one additional word:

19.8 (2) Where a defendant against whom a claim could have been brought has died and-

(a) […]

(b) a grant of probate or administration has not been made-

(i) the claim must be brought against “the estate of” the deceased; and

(ii) the claimant must apply to the court for an order appointing a consenting person to represent the estate of the deceased in the claim

Robert Allen commenced pupillage in October 2022. Robert is currently undertaking the commercial leg of his pupillage under the supervision of Michael James. He will be accepting instructions from April 2023.

[1] [2001] EWCA Civ 2079

[2] See White Book commentary at 19.8.1

[3] I.e., for the purposes only of the claim

[4] [Unreported]

[5] See 19.8.3

[6] That is ‘s.44’ for the post-Romans

[7] [1858] 26 Beav. 372

[8] [1869] L.R. 8 Eq. 376

[9] [380] ibid

[10] [1937] 1 All E.R. 473

[11] [1947] K.B. 467

[12] (Sweet & Maxwell, 20th Ed.): Chapter 65 - The Representative as Defendant: Section B - Parties in Action against Personal Representatives at para 65-13

[13] The Official Solicitor can be appointed as an alternative if no other suitable person is identified to represent the estate.  The cost of appointing the Official Solicitor is high and parties will seek to avoid it unless absolutely necessary to pursue a claim.

[14] As in Ballard v. Milner [1895] W.N. 14

[15] Per r.19.8 (4), which provides ‘Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.’