Making a claim following the death of a loved one
The sudden or unexpected death of a loved one is devastating, both emotionally and financially. This traumatic experience can be more challenging when your loved one has died as a result of negligent treatment.
We understand that making a claim for compensation will not make up for the loss of a loved one, but an unexpected death can often result in financial hardship, whether as a result of the unexpected funeral expenses or the loss of income that you were financially dependent upon.
There are two kinds of fatal accident claim; (1) the Estate’s Claim and (2) the Claim by the Dependants of the Deceased, under the Law Reform (Miscellaneous) Provisions Act 1934 and under the Fatal Accidents Act 1976.
Under the Law Reform (Miscellaneous Provisions) Act 1934 a claim can be brought on behalf of the Deceased’s estate for any pain and suffering suffered before they died and any losses incurred between the date of the injury and their death. The past losses will include care costs, aids and equipment costs, loss of earnings and funeral expenses.
These claims are usually limited, and most claims will be brought by, or on behalf of, the dependants under the Fatal Accidents Act 1976 for funeral expenses (if not claimed under the 1934 Act), bereavement damages, and for the loss of financial support.
There are a limited number of people who can claim bereavement damages. This is a statutory amount which is fixed by the government and currently stands at £15,120. Essentially, the claim is limited to spouses or civil partners, parents in respect of the death of an unmarried minor child and cohabitees.
Who can make a claim?
Only certain family members can claim:
- Husbands and wives or former spouses if they have not remarried.
- Couples who had lived together for at least 2 years before the deceased passed away.
- Civil Partners or former civil partners if they have not entered into a new civil partnership.
- Children and children treated as a child of the deceased by reason of marriage or civil partnership.
- Parents and people treated as parents including in-laws
- Grandparents and grandchildren
- Siblings
When someone dies there is a legal process known as probate to formally appoint someone, usually the next of kin or executor named in a Will, to be the personal representative for the deceased and to deal with their estate. Where there is a Will the representative is called an executor and a grant of probate is issued from the probate registry. Without a Will the representative is called an administrator and the probate registry issues a grant of letters of administration.
It is the grant of probate or grant of letters of administration that provides the legal authority to deal with all aspects of the deceased’s estate and this includes being able to pursue a claim or litigation on behalf of the deceased.
A claim will need to be made by the personal representative of the deceased, or the executor of the estate.
If there is a Will the personal representative (usually a spouse, parent or adult child) will need to get a Grant of Probate or where there is no will, Letters of Administration will be required so that they can deal with the deceased’s estate and financial affairs.
Our Wills and probate team are on hand to assist you with any questions you have in this respect.
What can I claim for?
Fatal accident claims can be very complicated and what can be claimed will often depend upon a number of facts including the age of the person who has died as dependency can only exist for as long as there is life expectancy.
For example, in cases involving the elderly, there are often no living spouses and no dependants which means that the claim is limited to recovery of funeral expenses and some compensation for pain and suffering. In these circumstances, it may not be feasible to make a claim even though the treatment was of a poor standard.
You should always seek legal advice as to the merit of any potential claim for compensation and our experienced lawyers are on hand to guide you through the process and where possible secure a financial settlement that will provide financial security for the future.
Is there a time limit for making a claim?
There is a limited amount of time, known as the ‘limitation period‘ during which a claim must be either settled or Court proceedings issued to protect it.
If the Deceased was still within the appropriate time limit for bringing a claim, i.e. within three years of injury or three years of date of knowledge of injury then the dependents have three years from the date of death to bring a claim.
What does it mean if there is going to be an Inquest?
Where someone has died and the cause of death is unknown then the Coroner will carry out an investigation into the death.
A post-mortem examination will normally be carried out in the first instance. If the post-mortem examination can establish the cause of death, then the Coroner will discontinue the investigation before an inquest is held.
If an inquest is required then the coroner will hear evidence about the circumstances of the death and will consider 4 statutory questions, ‘who, how, when and where’.
After the hearing the Coroner, or jury, will make a determination about the cause of death. Whilst the Coroner’s finding may be helpful in a Fatal accidents claim, especially if the Coroner has concerns and makes a ‘Prevention of Future Death Report’ to the healthcare provider suspected of being responsible for the death, it is a fact finding Court and the Coroner cannot provide an opinion with regards to liability and who is to blame.
If you require assistance with an inquest a member of our inquest team may be able to assist you.
Contact us
If someone close to you has passed away in questionable circumstances, contact us to speak to a member of our team on 0113 284 5000 or clinneg@isonharrison.co.uk
