The plaintiff had an order for maintenance against the deceased’s estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The court had previously refused to order the administrators to sue or alternatively that she should be at liberty to sue in her own name in the new proceedings. The personal representatives were already joined as formal defendants.
Held: The court rejected the argument that a beneficiary could only sue where a court would direct the executor to sue. That test was not a definition of the circumstances in which the beneficiary could sue in his or her name. This was not such a case, because the widow was the only beneficiary apart from the plaintiff. Though the strike out was refused. the fact that an asset belonging to the estate could only be got in if the plaintiff sued the company could not, by itself, be a special circumstance ‘because, if it were, it would wholly abrogate the rule that special circumstances have to be shown.’
There were special circumstances for the reason that the alleged asset had been paid to the widow on the footing that it was not part of the estate. The widow could not be expected to litigate this question. The circumstances were similar to the case where the cause of action was held on a bare trust. The relevance of that was that this court had held that a beneficiary under a bare trust could bring proceedings in his own name and where the trustees refused to sue, joining the other beneficiaries as defendants: Harmer v Armstrong [1934] Ch 65.
Goff J said: ‘She does not and, indeed, cannot ask for payment to herself, but she asks for payment to the administrators who are added as defendants for the purpose of regularising the proceedings and, by her writ and statement of claim, she expressly disclaims any relief as against them.’
Held: There were special circumstances entitling the former wife to make the claim, particularly because there were no other beneficiaries and the alleged asset had been paid to the widow on the footing that it was not part of the estate. Consequently ‘justice requires that the plaintiff, who is the only other person interested, should be allowed to have this question properly tried by the court.’
Judges:
Goff J
Citations:
[1971] 1 WLR 555
Jurisdiction:
England and Wales
Citing:
Cited – Harmer v Armstrong CA 1934
The court considered the position where the assignor of a contract was required to attend court as a party when the assignee sought to enforce the debt.
Held: A beneficiary under a bare trust could bring proceedings in his own name and, where . .
Cited by:
Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Updated: 10 May 2022; Ref: scu.279802