Q&As

If a claim for money is issued against a defendant who is deceased, is there a protocol on how an executor for the defendant should respond?

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Produced in partnership with Lynne Counsell of Addington Chambers
Published on: 29 November 2019
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Debts of the deceased-general procedure

The duty of the personal representative is to collect and get in the real and personal Estate of the deceased and administer it according to law: section 25 of the Administration of Estates Act 1925 (AEA 1925). See: Personal representatives—overview. The debts of the deceased are a liability of the estate (AEA 1925, s 32). One of the duties of the executor in administering the estate is to pay all outstanding debts and liabilities from the estate. ‘It is the duty of executors, as a matter of the due administration of the estate, to pay the debts of their testator with due diligence having regard to the assets in their hands which are properly applicable for that purpose…’ (Re Tankard).

The executor should first establish the assets and liabilities of the estate before paying any debt(s). This is usually carried out in the executor’s

Lynne Counsell
Lynne Counsell

Barrister, Addington Chambers

Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Money definition
What does Money mean?

Money may be defined as a medium of exchange and is generally accepted in the final discharge of debts and the payment of goods and services.

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