Suing Lord Janner's estate

Posted by Malcolm Johnson on

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The death of Greville Janner raises questions as to how those who allege abuse against him, will recover damages against his estate.

In a civil claim, the death of the Defendant is no bar to suing his estate. The victims of Jimmy Saville proceeded against his estate following his death. Obviously the funds in that estate were limited, but it is understood that the BBC and the NHS also provided funds to deal with the various claims.

Once a person dies, all of their assets pass into their estate unless they own property jointly with someone else, for instance their wife, in which case the property passes automatically to that other person on death. An estate can be frozen before it is distributed, but generally executors will be aware of any claims made and they are duty bound to deal with those claims before distributing funds to beneficiaries.

In certain circumstances, it is even possible to reverse a distribution under section 284 of the Insolvency Act 1986 as amended by the Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999). The interpretation of that Act and the Order can be seen in the case of Re Vos: Dick v Kendall Freeman [2006] BPIR 348. Section 284 applied in that case so as to render automatically void any payments made out of the estate of the deceased person from the date of the death, notwithstanding the fact that the insolvency order was not made until 8 ½ years after  death.  Section 284(1) was held by the court to read:-

"Where an insolvency administration order is made against a deceased debtor, any disposition of property made by him or his personal representative in the period beginning with the date of death and ending with the vesting of the deceased debtor's estate in a trustee is void except to the extent that it is or was made with the consent of the court, or is or was subsequently ratified by the court."

The effect of an insolvency order on a deceased's estate is to render void any distribution. Of course it would be open to the beneficiaries to apply for ratification, but the burden would be on them, and they would need to persuade the court that they and the executors, did not realise that there was any risk of the estate being made insolvent by a claim.  Section 284 of the 1986 Act (as amended) gives no guidance as to how the discretion to ratify is to be exercised, and so the court's discretion is wide.

Similar powers exist to reverse the passing of property into the hands of a joint owner.

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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