This was an application to strike out, or alternatively, for summary judgment in relation to, a claim in relation to the estate of Captain Haastrup brought by the claimant.
Captain Haastrup died on 8 October 2012 in England. On 20 January 2014, the claimant obtained letters of administration in Nigeria. On 20 June 2014, these letters were resealed in Leeds District Probate Registry. It subsequently emerged that the claimant had been injuncted by the Nigerian court to restrain him from relying on the letters of administration or from ‘parading himself as in any way as the administrator’ of the deceased’s estate ‘within or outside Nigeria’, pending Nigerian proceedings. The Leeds District Probate Registry informed the claimant that it was recalling the resealed grant pending investigation in August 2014, and subsequently cancelled the resealed grant on 12 February 2015. The claimant had issued proceedings on 22 January 2015. The claim concerned the alleged misuse of a power of attorney dated 15 June 2010 and granted by the deceased to the first defendant.
Against this background, the first defendant issued various applications, including that the claim be struck out. The claimant subsequently issued an application seeking his own appointment as personal representative of the estate for the purpose of the claim under CPR r19.8, or for an order that the claim proceed without a representative. The two applications were heard together by the master. The first defendant argued that the claimant lacked standing to bring the claim against the first defendant.
- 1) An action brought on behalf of a deceased’s estate by a person who does not have a grant is a nullity, though the position is different for an executor appointed by a will, as their title once confirmed related back to death. The Court of Appeal had decided in Millburn-Snell & ors v Evans  EWCA Civ 577 that CPR r19.8 was not capable of curing the defect in proceedings. Accordingly the application under r19.8 failed.
- 2) The ‘special circumstances’ rule (which could in certain circumstances permit a beneficiary to bring a claim to protect the estate) could not operate in the circumstances of this case. The mere absence of a personal representative was not enough for the rule to operate.
- 3) The common law interposes an administration of the estate between death and the distribution to those entitled. That requires the appointment of a personal representative, who is the safeguard for the beneficiaries. It was well established that no beneficiary has a proprietary interest in estate assets until the administration is complete. It was open to a beneficiary to obtain some sort of limited grant, or apply for the appointment of a receiver pending the grant of letters of administration, in order to protect the estate assets in the absence of a personal representative.
- 4) Although the case of Caudle v LD Law Ltd  WTLR 587 suggested that a person entitled to a grant of letters of administration had an immediate right to possession of personal property formerly owned by a deceased if necessary to safeguard the estate, those comments were arguably obiter and the decision may be wrongly decided. In any event the present proceedings were not necessary to protect the estate assets, so the issue did not arise.
- 5) A ‘burglar’ of estate assets could not constitute themselves a trustee or executor de son tort as in most cases a burglar never intends to intervene in the administration or assume fiduciary obligations.
- 6) The claimant could not succeed in establishing a claim against the first defendant on the basis that she was an executrix de son tort because the alleged wrongs were not alleged to have occurred after the death of Captain Haastrup. Acts alleged to have been done during Captain Haastrup’s lifetime were not capable of constituting the first defendant as an executrix de son tort.
7) The claimant had not been appointed a personal representative of the deceased and had no right in his capacity as a beneficiary of the unadministered estate of the deceased to sue the first defendant in respect of the wrongs alleged. Accordingly the claim was struck out in its entirety on the basis that it did not disclose any reasonable grounds for bringing the claim. If the Master had not struck out the claim, he would have given summary judgment.MASTER MATTHEWS: Introduction  In this claim there are presently four outstanding applications by notice. Of these, two are brought by the claimant against the first defendant, and two by the first defendant against the claimant. In order of issue they are as follows: (1) An application notice dated 18 June 2015, issued by the …