Civil Actions and Death

Survival of Actions

At common law, most personal civil claims by or against the deceased ceased on this death.  This position was reformed by statute in several types of case.

Ultimately, the Civil Liability Act 1961 provided that all claims, both against and in favour of the deceased, survived for the benefit of his representatives.  Defamation had been excepted, but this position was changed under the 2009 Act.

Even where a claim survives, damages for personal loss to the deceased may not be recovered by the estate.  This covers damages for personal injury including damages for pain and suffering,  loss of life and exemplary damages.

Claims against a deceased estate also survive. A shorter limitation period applies.  Claims must be initiated within two years of death or within the ordinary statute of limitations period, whichever period is the shorter.

It is necessary to obtain a grant of probate or letters of administration, in order to take or to defend legal proceedings on behalf of a deceased’s estate.

Proceedings by or against a deceased estate require a grant of probate or letters of administration.  Actions may not be taken by beneficiaries against the personal representative within a year of the date of death.  Creditors may take action within that period.

Claims for the Estate

Claims may be taken on behalf of the deceased’s estate in respect of the matters which caused the death.  The Civil Liability Act, in accordance with the general collateral benefits rule, provided that the proceed of insurance policies are not taken into account.  This does apply to policies for funeral expenses.

Claims may be made by dependents who have suffered loss by reason of the wrongful death. The claims for loss of dependence is based on loss of working years.  The amount of compensation is commonly earnings net of personal maintenance and like costs.

There is a special limited right for dependents to take action in respect of grief and mental distress,  which is set out below.

Where the death of a person is caused by the wrongful act of another, which would have entitled the deceased, but for death, to make a claim for damages, the person who would have been so liable may be sued for damages by the dependents of the deceased.  A single action only may be brought in respect to the death.

The personal representative should bring the claim.  If he does not do so within six months of death or whether there’s no personal representative, it may be commenced by any dependent.  The claim is effectively a class action for the benefit of all dependents.  The claim must be brought in three years and the date of death or date of knowledge.

It is not clear whether the statutory provisions have subsumed the possibility of a claim on common law first principles  Such claims were not recognised by older common Law, but arguments have been made such a claim might still be possible in principle.

Dependents

The dependents may bring a wrongful death claim for loss of dependency and other quantifiable loss Under the Civil Liability Act, they may claim for mental distress, subject to a relatively modest maximum amount. The wrongful death proceedings must be commenced within two years from the date of death, or the date of knowledge of the person whose benefit the claim is made.

The legislation provides a right to sue for dependents as defined.  This includes the spouses’ parents, grandparents, step-parents, grandchildren, step-children, brother, sister, half-brother and half-sister.  It also includes the deceased’s former spouse and certain others who suffered injury or mental distress as a result of death.

The Act defines relationships, to be include relationships through adoption. Non-marital children are deemed to be the offspring of their mother and reputed father.  Persons in loco parentis are considered the parent of that other.

The deceased must have had a claim for a civil wrong, breach of contract or trust.  Therefore, any defence available against the deceased in a personal action or equally available in an action by the dependents.  A reduction in recovery may apply because of contributory negligence on the part of the deceased.

The loss must arise out of the familial relationship.

The damages recoverable are damages in respect to

• the funeral and other expenses actually incurred by reason of the wrongful act
• a maximum sum of €35,000 by way of reasonable compensation from mental distress resulting from the death  to each of such dependents;
• total amounts as is considered proper proportionate to the loss or damage resulting from death, to each of the dependents. This includes financial loss of benefits, loss of service and other losses that can be reduced o monetary terms.

Funeral expenses include funeral cost and associated expenses.  The cost of a normal and reasonable headstone may be allowed. Certain expenses associated with the funeral may also be allowed.

Mental distress damages are capped at a maximum of €35,000. Generally, there is no recovery under tort law for mental distress.  The courts make a notional award in an amount that is justified to persons who suffer from mental distress.  The maximum amount is not regarded as a figure for the worse case.  The cap is a total maximum amount and is not per person.

Financial Loss to Survivors

The principal claim for damages usually arises from financial loss caused by death.  There is no cap applicable.

The measure of dependency is a question of fact.  It will depend on the actual financial loss of dependence.  This will, in turn, depend on the earning capacity of the deceased.  It is based on the deceased’s prospective earnings and other benefits.  It will take account of the proportion of this income which would have received by dependents.  As well as covering tangible financial loss. it may also cover a loss of services, which are reducible to monetary form if they have to be purchased from somebody else.

The courts attempt to assess the future loss.  It appears, that he courts should take account of the effect of taxation on future earnings.

Until recent changes, a capital sum amount is awarded.  In principle, the capital sum should be such as to yield an income representing the dependency.

Dependence Issues

The court will make a hypothetical assessment of the net contribution, which the deceased would have made to the dependents.  Of its nature, this will be conjunctional, based on probabilities and judgment.  The principles are broadly similar to those which apply in cases of serious injury, which impair future earning capacity.

Where the dependents receive benefits on death such as accelerated inheritances, account will generally be taken of them.  The court may also allow hypothetically,  the increase in inheritance, had the deceased survived.

The Civil Liability Act provides that no account to be taken of sums payable on the death under an insurance policy, or any pension gratuity of like benefit under statute or otherwise in consequence of the death of the deceased.

The courts will have regard to factors which have occurred since the death, but before the trial in assessing probabilities.

Where a person who has performed services at home has died, compensation will be allowed for the loss of his or her services.

Fatal injury claims raise difficult questions regarding probabilities of future earnings and future dependency.  Similarly, future inheritances, remarriage and circumstances are at best, hypothetically assessed.  The court may have regard to the possibility of marriage with the consequent reduction of cost, relative to a single-parent.

Some of the cases are old-fashioned and imply outdated assumptions about the role of women within marriage. Some such older cases assume that on re-marriage, a spouse’s services are effectively available for nothing, which without remarriage would have to be paid for.

Two year Period

The Civil Liability Act provides that claims which survive against the estate of a deceased must be taken within the relevant time limit applicable at the date of death or two years of death whichever is earlier.

The special two year limitation period overrides the Statute of Limitations.  There is no provision of extension by reason of disability, acknowledgement, concealment etc.  It would appear that the suspension of the Statute of Limitations which applies while the matter is referred to Personal Injury Assessment Board is inapplicable,  as the provision is not set out in the statute of limitations, as the PIAB legislation requires.

The two-year limitation provision applies only if the cause of action accrued before death.  Where there is a requirement for a demand before a debt falls due, then it will not accrue before death, unless a demand has been made during there deceased’s lifetime. If the obligation and the corresponding right to initiate proceedings falls due automatically, then this may occur, upon default by the deceased during his lifetime, without a demand.

The constitutionality of the special two year limitation period has been challenged and upheld.  The was held to be rationally based, and made in the interests of facilitating winding up of estates within a reasonable time.

Claim to Estate

A claim to the estate of a deceased person, whether under a will or intestacy, must be bought within six years of the date when the right to receive the share or interest accrues.  This limitation does not apply to an action taken by a personal representative in order to recover the assets of the deceased in the hands of third parties.  Accordingly, there is a time limit of 12 years in which to recover real property which forms part of the deceased’s estate from third parties.

The Statute of Limitations time limits does not normally run as between trustee and beneficiaries. The Succession Act provides that the fact that a person is a personal representative does not make him a trustee.  Accordingly, if he is a beneficiary, he may bar the rights of other beneficiaries.  Accordingly, the personal representative may acquire title by adverse possession as against other beneficiaries.

A person in possession of property comprised in a deceased’s estate in his capacity as bailiff for another is not a trustee within the statute of limitations.  A bailiff is a representative, and accordingly, his possession is not adverse.  The purpose of the section is to provide that that time starts running against minor beneficiaries after they reach the age of majority. Accordingly is not entirely clear if it has this effect.

Under the Succession Act, persons who acquire title by entering into possession of the estate of the deceased, acquire title by joint tenants. This seeks to ensure that where the title to the property is not formally administered and is acquired by long possession by several persons in possession, typically over several generations, that as those persons die, their entitlements pass to the surviving persons in possession. This tends to simplify title by reducing the number of persons with an interest in the property.

Family Rights to Estate

An application by a child for provision out of the estate of a deceased parent must be made within six months of taking out representation.  This applies even though the person for whose benefit the application is made, may be under the age of eighteen.

A person or representative must notify the spouse of his or her right to take the legal right share of the deceased’s estate.  The right is not exercisable after six months from the date of the notice or [one year] from the taking out of representation, whichever is later.

The surviving spouse of a deceased may require the personal representative to appropriate the dwelling house in satisfaction of his or her share of the estate. The spouse, if he or she wishes to do so,  must exercise the right of appropriation within six months of notification or one year of representation whichever is later.

No appropriation shall be made unless notice of the intended appropriation is served on all parties. The time limit for any party served with the notice, to bring an application objecting to the appropriation in six weeks from the date of service of that notice.  The notice must be accompanied by the requisite information.

Apart from some of the death-related time limits a person under a disability (minority, unsound mind) has a period of three years after cessation of disability in order to make a claim to an estate or share of an estate.

Limitation periods Trusts and Estates

The statute of limitations provides a six-year time limit for breach of trust.  This period is postponed, where the breach is fraudulent or where a trustee has wrongfully withheld or converted trust property to his use.

The statute of limitations provides that a “trustee” does not include a person whose fiduciary duty arises merely by implication of law. Such a person is not deemed to be equivalent to an expressly appointed trust. Therefore, persons who are deemed to be in a  fiduciary relationship, by reason of their position or their actual relationship with another, are deemed trustees for the purpose of the act.

A personal representative is not a trustee for the purpose of the act.  The Official Assignee is not a trustee.  In the bankruptcy context, a person whose fiduciary relationship only arises because he is in possession of assets comprised in the estate of a deceased person.

Where any person has a pre-existing fiduciary duty and uses the beneficiary’s monies in breach of that duty he is a trustee for the purpose of the legislation.  Where there is no prior relationship he will not generally be a trustee.

Person dishonestly or knowingly receive monies which belong to another are trustees for the purpose of the Act.  No period of limitation applies against a trustee or a person claiming through him, where the claim is found on fraud or fraudulent breach of trust, to which the trustee was a party or privy or the claim is to recover trust property or the proceeds are also retained by the trustee or previously received by the trustee and converted to his use.

Generally, fraud in this context will refer to dishonesty.  It may refer to breach of trust in itself. Fraud may cover fraudulent concealment,  which is a general grounds for postponing the statute.

Where a trust property is held by a trustee, the time limit does not run until demanded.

Equitable relief is subject to the same time limits as apply to analogous common law relief.  Some equitable actions such as an action for an account are themselves subject to specific provisions in the statute of limitations.

Equitable relief is subject to the principles of laches and acquiescence. Under these principles, an equitable remedy may be refused after a much shorter time limit than that applicable under the statute of limitations.  In such cases, equitable relief may be denied and a common law relief such as damages only may be granted.