Can I take my builder to Small Claims, even though he died?

[Mama17xx]

Sorry in advance for the long message!
I had some major renovations done last year, which we interviewed builders for. This one builder we liked, an older gentleman. It was his building business. During the interview he told us he had cancer, but it was all under control with regular chemotherapy, and that he was fit as a fiddle. We asked what would happen if he fell ill while the build was under way, and he assured us if that was the case then his 'son' would take over. Someone he took under his wing, calls him his son and will pass on the business to him. We were happy with that and proceeded with the build.
Fast forward a year, they had almost finished the build but the roof on all new areas was leaking (it’s a flat roof) The workmanship was very poor, holes everywhere, the rubber was coming up, water was getting in...Building Control came for final sign off and refused to sign it off, the report stated 'The roofing work was found to be unacceptable. The EPDM roofing material was not correctly laid or adhered around the skylight and across all roof areas. I advised the homeowner that this needed to be redone. Additionally, the coping stones were improperly laid and not filled correctly with mortar.'
We had to pay £13k to a professional flat roofing company to fix it. Luckily, we got the house signed off just before Christmas.
During this time, I had been emailing, messaging and calling the builder to discuss a refund so I could pay the new roofer (I had paid him all the money I owed for the build, but kept back £2.4k which obviously doesn’t cover the £13k but put towards the roof) and I was ignored. Then his 'son' called me and said that the builder owes him £8k in wages, and he no longer works for him so please refrain from calling him. And it was a very random way I found out he passed away a month or so back.
The builder is not a limited company. It was a family business where his daughter worked doing admin, and his wife sometimes worked. I have no idea of the company is still going, or if the 'son' was lying to me about the £8k and no longer working.
I wanted to get the roof signed off before proceeding with Small Claims, but during this time I was emailing them, trying to get this rectified amicably and requesting a mediator, but no reply.
The small claims court will cost me £500 to try and get £10,000 back. Is this possible to do? I don’t want to waste £500 if its impossible. Thank you

Where do you think the £10,000 would come from?

He’s dead!!
how can you take him / his company to court

Erm, he died.

You should be able to get it from his estate. See a solicitor. He should have had insurance etc.

Did he have business insurance?

I think you can go to court against his estate but you'd want to get an idea if there are any assets in the estate. Eg.if he owned his own home then maybe, if his wife lives in that home then probably not.

Was he a sole trader or a legal partnership with the 'son'?

How about insurance - did he have any trade insurance?

Obviously the key witness is not able to put up a defence but hopefully there is enough of a paper trail to make it a clear case.

It's unpalatable suing someone's estate after death but if he has business assets to pay the claim - and obviously he has your money and didn't do a good job - then I think this is fair enough.

He might not even be dead. It’s worth checking the facts of what “son” told you against public records and then deciding.

Thanks for your response Letstheriveranswer. I'm pretty sure he owned his own home, him and his wife together, but cant be sure.
He was the sole trader of his business.
He would often let me know he had business insurance.

I dont want to be insensitive to the situation, but for months before he passed I was trying to contact him about the roof and other various issues with the build, but I have been completely ignored. As far as the family are concerned, I have no idea he was even ill, let alone passed away, because I found out through conversation with someone. And all I want is what I am out of pocket with, due to poor workmanship, i'm not looking to seek damages.

Go ahead, claim on his insurance.
Get the policy details from the "son" or family.

S.C.C. if insurance won't pay.

What name would you put on the summons? As a sole trader you would have to issue in his name, you cannot do this if he has died. It may be more beneficial to see a solicitor to follow the insurance route.

Contrary to what you and others seem to think, there is no problem with making a claim against someone who has died. You cannot sue the deceased, but you can sue their estate.

Are you sure he has passed away, is it hearsay or reliable?
Have you googled his name to see if anything comes up on news, obituaries, Facebook?
You can generally check gov.uk probate records too but it's too soon in this case for there to have been probate.

If you are sure he has died I would send a clear written letter to Executors of Mr Builder, give condolences, then set out the facts and that you had been trying to resolve the issue prior to his sad passing.
Say you would like a response in say 30 days.
Send it signed for.
After 30 days, if no response send a pre-action small claims court letter.
Then start with Small claims.
Do you have legal cover through your home insurance? Might be worth asking their advice especially on how to address the Small Claims, whether it's to Estate of Mr Builder, or Estate of the Late Mr Builder etc as these types of things are important for the claim. Make sure you also spell his name accurately and as fully as possible, for example of you say Anthony Builder and his name is Antony Builder the defendant can say it's not them and have it thrown out.

Hopefully he did have insurance and the executors will reply to the first letter and pass it to their insurers.

I wonder also, if you have legal cover, if your insurers for that could handle it on your behalf?

You potentially are a creditor against his estate. I'd seek advice as to how you advance your claim

How did you pay for the works?

Throughout the build he would send me invoices in which I paid within a day or two, via bank transfer.

At the very beginning we discussed the last 10% being paid after building control sign off, which would have been just over £10k, but they (the builder and his daughter) became quite insistent I paid the money, so I ended up keeping back just £2.4K and transferring the rest, even though that’s not what we agreed, but wanted to keep a good relationship. As soon as I paid it was pretty much silence from them.

If I had kept the last 10% like agreed, I would have used that to pay for the roof and I wouldn’t now be in this situation.

Not sure why you paid the last 10% before building was signed off if that’s what you agreed - as obv it was shoddy - sounds like he knew it wouldn’t get ticked off

but yes check he’s dead. Contact the daughter and see if claim off his estate/his pli as @Mama17xx said

Yes you can claim against his estate.