Intestacy in UK Law

In English law the rights of a testamentary legatee in the unadministered estate of a testator are well settled: see Lord Sudeley v. Attorney General [1897] A.C. 11 and Commissioner of Stamp Duties (Queensland) v. Livingston [1965] A.C. 694. A legatee's right is to have the estate duly administered by the personal representatives in accordance with law. But during the period of administration the legatee has no legal or equitable interest in the assets comprised in the estate.

Many wills contain slips and omissions and fail to provide for oontlngencies which to anyone reading the will, mlight appear contingencies for which any testator would obviously wish to provide. This type of treatment of an imperfect will is only legitimate where the court can collect from the four corners of the docuisent that something has been omitted and, further, collect with sufficient precision the nature of the omission.

In the light of Buchanan v Milton, the domestic law is clear. If there are no personal representatives, then it must be asked: who has the best claim to be appointed as administrator of a deceased person's estate. As demonstrated by the result in Buchanan, the situations where the order of priority will be varied will be rare indeed.

As to the law, so far as this Court is concerned it seems to me to be settled by the cases of Ingall -v- Moran and Hilton -v- Sutton Steam Laundry and, I may add, Burns -v- Campbell, reported in 1951, 2 All England Reports at page 965, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.

In the latter case the provision referred to is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance. In the former it is such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive whether or not it is required for his or her maintenance.

I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v. Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ said, at 700:

The reason that any such application should and would have failed is because Part 19.8(1) does not, in my view, have any role to play in the way of correcting deficiencies in the manner in which proceedings have been instituted. But on any basis it appears to me clear that it is no part of the function of Part 19.8(1) to cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived.