Tom and his wife Sarah have two children, Max (25) and Ellie (14). On their way back from a weekend away, the family is involved in a road traffic collision, which was not their fault. Their son Max was killed in the crash and Tom was seriously injured and left incapacitated.

Tom’s wife Sarah is devastated but needs to think of her family. Tom was an engineer and the main financial support for the family. He is also the sole owner of their family home, and with him being unable to work Sarah is concerned about what the future holds for their family.

The death of their son Max has not only impacted the family, but also Max’s long term partner, Juno, who he has been living with for the last three years.

Both Sarah and Juno are lacking understanding on what support they are entitled to, and want ensure Tom’s future care requirements are met, their homes are secured, and any immediate financial strain is limited. What steps should they take to achieve greater financial security and ensure that Tom’s needs are met?

Who can bring a personal injury claim and what can be claimed?

Tom is entitled to bring a personal injury claim to recover his accident-related losses following the road traffic collision.

Typically, an injured person will initiate the claim themselves and will provide instructions to solicitors throughout. However, Tom lacks mental capacity as a result of the accident and would be unable to instruct solicitors whilst this remains the case.

Various factors will be relevant when determining who should bring the claim on Tom’s behalf. The options are broadly as follows:

1. Tom could potentially bring his own claim

In cases where a person is rendered incapacitious by their accident-related injuries, the usual three year ‘limitation period’ to bring a claim does not start to run until the person regains capacity. This means that, should Tom be expected to regain capacity, he would have the usual amount of time to deal with his claim once he had regained capacity.

Unfortunately, it seems as though the accident has caused Tom irreversible damage and that he will lack capacity permanently. This means that someone else is going to have to bring the claim on Tom’s behalf in order for him to recover the compensation to which he is entitled.

In any event, where the injuries suffered are significant, it is rarely going to be the best option to delay instructing solicitors as, once instructed, solicitors can provide significant support and assistance to the whole family, helping them to manage the sudden and far-reaching consequences of their loved one’s injuries.

Even if a person may regain capacity, it is often worth initiating the claim on the injured person’s behalf as soon as possible. The injured party can always take over conduct of the claim at a later stage if they regain capacity.

2. One of Tom’s family members or close friends could act as ‘Litigation Friend’

We often receive instructions from a person’s spouse or adult child in situations such as Tom’s. Max was killed in the same accident that caused his dad’s injuries, but Tom’s wife Sarah could be appointed litigation friend by completing and filing a ‘certificate of suitability’, with the court confirming that she is able to fairly and competently conduct proceedings in Tom’s best interests.

Sarah would likely be best placed to act as Tom’s litigation friend as she would have intimate knowledge of Tom’s needs and the impact of the accident on her family, which the solicitor will need to understand to quantify the claim and ensure that Tom’s needs are addressed.

If Sarah does not feel she is able to act as Tom’s litigation friend, another family member or person close to the family could act as litigation friend.

3. A court appointed deputy could act as Tom’s ‘Litigation Friend’

Alternatively, a court appointed deputy could act as Tom’s litigation friend. If a deputy is instructed to manage Tom’s affairs, then they would also have an intimate knowledge of the issues in the case.

Sarah would be able to discuss these options with a solicitor before determining how best to proceed with Tom’s claim.

If you suffer a life changing injury what can be claimed?

Any ‘loss’ which flows from the accident, or which would not have been suffered ‘but for’ the accident, will be recoverable as part of Tom’s claim. Personal injury solicitors will take a thorough approach to examining the losses which are specific to Tom’s case.

These are likely to include:

• Compensation for the pain, suffering and loss of amenity suffered by Tom (i.e. compensation for his injuries).
• The cost of any treatment required by Tom as a result of the accident. Any costs recovered will be based on the cost of private treatment including any surgery required, inpatient or outpatient treatment and complimentary therapies such as physiotherapy, speech and language therapy, hydrotherapy, occupational therapy, psychological treatment etc.
• The cost of any adaptations required to the family home.
• The cost of any aids or equipment required by Tom as a result of his injuries.
• A claim for the hours of care and assistance provided to Tom by Sarah and other close family members. I.e. if Sarah has to help Tom wash or get changed when he would have previously undertaken these tasks independently, the time she spends assisting Tom with such tasks will be taken into account.
• The cost of replacement services for tasks Tom used to perform but is no longer able to e.g. gardening, DIY, and assistance with the childcare provided to their daughter Ellie.
• Loss of earnings.
• Loss of pension.
• The additional costs of going on holiday and undertaking activities as a family as a result of Tom’s disability status.

If a Deputy has been appointed to manage Tom’s property and financial affairs, they will work with the solicitors handling the personal injury claim to ensure that Tom’s needs are met on a continuous basis.

Can a fatal accident claim be brought following Max’s death in the road traffic collision?

Fatal accident claims are designed to compensate those who are left behind after a loved one dies as a result of someone else’s negligence. Even if a person contributed to the circumstances that led to their death e.g. they weren’t wearing a seatbelt, there will be a viable claim so long as someone else is found to bear primary responsibility for the accident.

Max certainly did not cause the accident that led to his death and whilst nothing could ever compensate his family or his partner for their loss, they would be wise to consider bringing a fatal accident claim to recover the compensation they are entitled to from the insurer of the party at fault.

The award of compensation will comprise a claim on behalf of Max’s estate as well as a claim on behalf of his ‘dependants’ i.e. those falling within a statutory list of eligible persons, who had a financial dependency on Max, or relied on him for support with domestic tasks or other activities.

It is likely that Sarah would have been dependent on Max for the usual things that a mother would have relied on her son for, including assistance around the home and with the youngest family member, Ellie. Her dependency claim will be for the commercial cost of replacing the assistance that Max provided and would have continued to provide over the remainder of their lifetimes. If Max helped with gardening and DIY for example, there would be a claim for thirty years or so of gardening and DIY, costed up on a commercial basis e.g. £20-£30 per hour. This would help Sarah to focus on caring for Ellie whilst knowing that the house was taken care of.

Juno is potentially entitled to a significant award of compensation due to her close relationship with and dependency on Max. Fatal accident claims are fixed at the point of death and assume that the relationship would continue on its present trajectory. Provided that Juno meets the eligibility requirements of the Fatal Accidents Act 1976 (see below) she would be entitled to a lifetime’s dependency on Max’s income and pension, as well as a lifetime’s reliance on the ‘services’ he provided such as driving, cooking, cleaning, assisting with childcare and so on. Juno’s dependency claim could make the difference between her losing her whole future as she imagined it, and being able to rebuild her life without worrying about finances as well as the loss of her partner.

Max’s estate claim would comprise funeral costs (if paid for from his estate), an award for his pain, suffering and loss of amenity and any other losses incurred prior to his death, such as care provided to him by loved ones following the accident.

What does Juno have to establish in order to be compensated under the Fatal Accidents Act?

As Max and Juno weren’t married at the date of Max’s death, one might be forgiven for thinking that Juno’s entitlement is null or is lesser than if they’d been married.

However, provided that Juno can establish that she:

• Had been living with Max in the same household immediately prior to the date of death; and
• Had been living with him in the same household for at least two years before that date; and
• Was living during the whole of that period as if she was the spouse of Max i.e. their relationship was a romantic one and they weren’t just living together as friends.

She would then have the same entitlement as if she was Max’s wife.

Solicitors would be able to help Juno establish that the above criteria had been established based on the facts available. Interestingly, ‘household’ does not necessarily mean house, although living together in the same house is helpful evidence to establish that a couple did form part of the same household for the two years prior to death.

Same sex-couples are eligible to claim dependency in the same way, provided that they were married, in a civil partnership or can prove their eligibility according to the criteria above for couples living in the same household.

More from Roisin O’Dubhlaoidh – Associate – Personal Injury

What happens if Tom has to go into care?

If Tom has to go into a care facility as a result of his injuries, then there is the initial fear that his property might have to be sold in order to fund his care. This would mean that Sarah and her family would have to find alternative accommodation, at their own expense. However, the position is not that straightforward.

Firstly, Sarah will have acquired some matrimonial rights in the property during their marriage and will need to take separate legal advice to confirm whether or not she is entitled to any net sale proceeds – if the property has to be sold. If she has registered her matrimonial interest against the property title this will be easier to prove.

Secondly, when making an assessment for cost of care, there is usually a disregard of the property of a dependant spouse or other person still living there.

Thirdly, if Juno can establish that she has acquired an interest in the property or is dependent on Tom then that may also prevent the property from being sold.

Exit scenarios, beneficial interest and property rights

The above arguments are of course reactionary to the tragic situation which has arisen. Whilst these scenarios are thankfully quite rare it is important for any couple, whether married or not, and families living in one household to consider the best way to own a property to reflect their ‘exit strategy’ if the situations changes for any reason.

A property should be owned by the parties that have a beneficial interest in it or their respective rights should be reflected in an appropriate legal agreement. Some examples of this are: –

In joint names as either:

• Joint Tenants where the property automatically passes to the survivor.
• Tenants in Common in equal or unequal shares – this means that your respective share of the property will pass under the terms of your Will. If you choose this option it is important to ensure that your Will is up-to-date.
• As Trustees holding upon the terms of a declaration of trust which details who has what share in the property and what their rights and obligation are.

In a sole name:

• If your spouse/partner/adult family is living at the property with you, it is prudent for the non-owning persons to have rights noted on the property title to alert any third party that they have an interest in the property. This will also prevent the property owner from selling the property without their knowledge.
• The rights (and any obligations) should also be set out in a legal agreement.
• Sometimes, it may also more appropriate to secure any interest of the non-owning party in a legal mortgage over the property. If there is a mortgage over the property, in favour of a mainstream lender, then their consent will need to be obtained for third party rights or a second charge.

You should also consider other steps such as Will Planning and Lasting Powers of Attorney to ensure that all exist scenarios are catered for.

More from Eleanor Baker, Property Conveyancing, Associate

Dying without a Will is known as dying “intestate” and to protect the assets of someone dying intestate, the law sets out who is entitled to inherit the estate. These provisions are known as the “intestacy rules”.

As Max and Juno were not married or in a registered civil partnership Juno is not entitled to any of Max’s estate under the intestacy rules but if she and Max had any assets held jointly between them, such as a joint bank account, these would pass directly to Juno by “survivorship”.

As Max did not have any children either, the intestacy rules state that his estate, other than jointly held assets, passes to his parents, Sarah and Tom and, as Tom is not able to manage his own affairs let alone deal with his son’s estate, it will fall to Sarah to deal with the administration of Max’s estate, including applying for a Grant of Letters of Administration and collecting in Max’s assets.

Making a claim against an estate

As Juno and Max were living together before he died, and they had been living together for more than two years, Juno would be able to bring a claim against Max’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 if she feels that she needs sprovision from Max’s estate to help support herself. As she and Max were not married when he died, the level of provision Juno could potentially expect is what would be reasonable for her to receive for her maintenance.

What happens if there are competing claims against an estate?

If she did bring a claim under the 1975 Act, the Court would consider not only her needs and own resources but also the size of Max’s estate and any completing claims that there might. Given that Max’s father, Tom, was left severely disabled by the accident in which Max died, the Court would certainly consider Tom’s needs alongside Juno’s and may well consider that his needs were equal to or greater than hers.

There are strict time limits in which a claim under the 1975 Act need to be brought, being within 6 months of the date that the Grant of Letters of Administration is issued so Juno would need to move relatively quickly if she wants to bring a claim against Max’s estate. Sarah will also need to keep this timescale in mind when she is dealing with Max’s estate and not transfer his assets to her and Tom until the claim deadline has passed.

Ordinarily, where someone has died intestate when they were in a long-term relationship with a partner they were not married to, it is not uncommon for the deceased’s beneficiaries (usually the deceased’s parents, as here) and the partner to negotiate what might be a fairer division of the estate between them without the cost, angst and burden of Court action. However, as any such settlement would almost certainly be outside of Sarah’s authority as Tom’s Deputy, unless it was included in the original Deputyship application, Sarah would need to apply to the Court of Protection for an Order approving the settlement agreement.

More from Mandy Casavant, Private Client, Partner