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How Do You Sue a Dead Person?

Sue an Estate Representative

The short answer is: you can’t, because that person, as a legal entity, no longer exists.  However, you can sue that person’s estate through the estate’s representative.

Generally, the estate representative, more commonly known as an estate trustee, is named in the deceased person’s Will, and appointed by the Court.  However, cases will arise where either the named estate trustee(s) does not wish to, or is not able to accept the appointment because of death or disability.  As well, in cases where the deceased did not leave a Will, someone must apply to be the estate trustee.

Commencing the Proceeding

In most cases, litigants will often wait until an estate trustee steps forward and/or is appointed by the court.  Often, a claimant will not know if someone has applied to be an estate trustee.  It is possible to search the Estate Registrar’s records for a probate application with respect to the deceased’s estate.   It is also possible to request notice of the commencement of a proceeding under rule 74.03 of the Rules of Civil Procedure, if an application for probate has not yet been filed.

Once the estate trustee’s name is obtained, the claim or application can be commenced against that person, in his capacity as estate trustee.  But what if the weeks and months go by and no one has applied to be the estate trustee?  To avoid the expiration of the limitation period, a claimant may need to commence a proceeding even where there is nobody in place to represent the estate.

Rule 9 of the Rules of Civil Procedure governs proceedings by or against estates.  Rule 9.03 contains a number of provisions that remedy proceedings in which the proper executor or administrator of the deceased has not been named.  A proceeding by or against the deceased person that was not properly constituted will not be treated as nullity, nor will it need to be recommenced.  Instead, the Rules provide that the Court has a general power to remedy how a proceeding was constituted.  For example, if the proceeding was brought against “the estate of John Smith, deceased”, upon the appointment of an estate representative, the proceeding can be continued, by court order, against the proper executor or administrator.

In cases where there is a logical choice of estate representative, but for some reason, that person has not accepted the appointment, it is possible to force that person to either accept or refuse the appointment, pursuant to rule 74.15(1)(b).   This rule can be utilized where a person has been named as estate trustee in a Will, but has not confirmed acceptance of the appointment, or where there is no Will, but there is next-of-kin available to act.  If the Court grants this request, that person will either have to consent to or reject the appointment.  Should that person reject the appointment, the next step would be to ask the Court to appoint a litigation administrator under rule 9.02.

A litigation administrator is appointed solely for the purpose of dealing with the litigation.  This means he or she will not be responsible for administering the entire estate.  It is important to note also that subsection 9.02(2) states that “an order in a proceeding to which a litigation administrator is a party binds or benefits the estate of the deceased person, but has no effect on the litigation administrator in a personal capacity, unless a judge orders otherwise.”  The effect is that the litigation administrator will not be held personally liable for the proceeding, nor will he or she benefit personally.

Service

With respect to service of the claim or notice of application, there are a number of procedural issues to keep in mind.

As with all other proceedings, the claim or notice must be served properly.  But where there is no estate representative, on whom can the claim or notice be served?   It would be reasonable to serve the deceased’s next-of-kin and beneficiaries of the estate, if known.  It would also be reasonable to serve the claim or notice by mail to the deceased’s last known address.  As a precaution, an order validating service on the estate could be requested.

It is also important to determine whether beneficiaries of the estate need to be served.  Pursuant to rule 9.01, generally a proceeding may be brought against an estate without joining the beneficiaries as parties.  There are a number of exceptions to this, including where the proceeding involves the validity or an interpretation of the deceased’s Will, where it is sought to remove or replace an estate representative, where there is a claim of fraud or misconduct against the estate representative, or where it is sought to have the Court administer an estate.  In all of these exceptions, the beneficiaries of the estate must be joined as parties and served personally.

There are also cases in which certain people must be served, even if they are not named as parties to the proceeding. For example, in dependant support claims, in order to grant an order for support, the court must be satisfied that all persons who are or may be interested or affected by the support order have been served with the notice of application.

Conclusion

Claims against an estate must be handled carefully so as to avoid the claim being dismissed or delayed for procedural defects.  The court’s general power to remedy improperly constituted proceedings will not be available in all cases.  Care must be taken to review the applicable provisions of the Rules of Civil Procedure, and to obtain as much information as possible about the deceased and the estate prior commencing litigation.

The best thing about P.V. is that they use the right lawyer for the right service, both in terms of type of service and size of file.
Vince Siciliano, BDO Canada Limited