Sadly, in some cases, the Claimant may pass away before their clinical negligence claim has finished or even begun; however, their death does not have to conclude their claim. The Law Reform (Miscellaneous Provisions) Act) 1934 states that in most circumstances, the claim survives for the benefit of the Claimant’s Estate; however, you only have three years from their death in which to commence court proceedings, so it is important that you contact a clinical negligence solicitor as soon as possible.
Who can act for the Estate depends upon whether the Claimant left a valid Will or not. A Will normally appoints Executives to act on behalf of the Estate, and these would be the people legally entitled to continue with the claim. If the Claimant died intestate (they did not leave a valid Will), then someone can apply to be their Administrator and continue with the claim. Usually, the Claimant’s spouse, adult children, or parents can apply to be an Administrator.
In either case, you need to apply for probate, which will either be a “grant of probate” if the Claimant left a valid Will or “letters of administration” if the Claimant died intestate. You can apply for probate yourself, or if you prefer, you can instruct and pay a probate solicitor to obtain probate on your behalf. If you decide to do this yourself, you can complete the probate forms online and then print and send these to your local probate registry (you may also have to pay a fee). You can find out more information on Applying for Probate here.
Whilst the Executives or Administrators are legally entitled to continue to provide instructions for the claim, any compensation will be distributed in line with the wishes of the Claimant as set out in their Will or in line with the intestacy rules if there was no valid Will. The intestacy rules set out who can inherit from the Estate, and first in line is usually the Claimant’s spouse, followed by the Claimant’s children.
Even though the Claimant is no longer living, a clinical negligence claim can still include an award for the Claimant’s pain, suffering, and loss of amenity. It can also include any other types of loss they would have recovered had they survived. This might include losses of earnings, the cost of medical treatment, travel expenses, and any care or equipment they received during their lifetime.
The death of a Claimant may also give rise to a new claim under the Fatal Accidents Act 1976. Suppose the Claimant’s death can be attributed to clinical negligence. In that case, the Claimant’s spouse or partner can claim a lump sum “bereavement award”, funeral costs, and anyone who was financially dependent upon the Claimant or dependent upon services provided by the Claimant (e.g. childcare, gardening, DIY, etc.) can also claim for these losses. This part of the claim aims to ensure that the Claimant’s family is not financially worse off after their death.
How these claims are calculated can be complicated and requires specialist legal advice. If you are thinking of making a clinical negligence claim on behalf of a deceased relative, please contact Graystons Solicitors at 0151 645 0055 to discuss the matter further.