Order to Continue – Continuing an Action commenced by the deceased
You are the Estate Trustee of an estate. In going through the Deceased’s personal belongings, you become aware that shortly prior to the Deceased’s death they had commenced a lawsuit, and that it appeared that such a lawsuit was still before the court. As you are the Estate Trustee of the estate, you begin to question whether it now falls to you, as the estate’s representative, to continue the lawsuit on behalf of the Deceased, and what steps, if any, are you required to take?
The death of a party during a court proceeding is considered a “transmission of interest” in accordance with the Rules of Civil Procedure, insofar as the interest of the party who has died has now been transferred to their Estate Trustee (or other duly appointed individual in accordance with the Rules of Civil Procedure). In accordance with rule 11.01 of the Rules of Civil Procedure, when there is a transmission of interest at any stage of a proceeding (whether as a result of the death of a party or otherwise), the proceeding is automatically stayed as against the party whose interest has been transferred. To this effect, upon the death of the individual in our example, the proceeding which they had commenced was automatically stayed as it relates to them.
In accordance with rule 11.02 of the Rules of Civil Procedure, in order for the proceeding to continue on behalf of the deceased individual, an “Order to Continue” must be obtained. To obtain the Order to Continue, the party to whom the interest has been transferred (i.e. the Estate Trustee) must file with the registrar an affidavit verifying the transmission of interest, together with a requisition. Upon the issuance of the Order to Continue, it must be served on all parties.
Notably, in accordance with rule 11.03 of the Rules of Civil Procedure, if an Order to Continue is not obtained within a “reasonable” amount of time following the transmission of the interest, a defendant may move to have the proceeding dismissed for delay. To this effect, if it is the intention of the Estate Trustee to continue the proceeding on behalf of the estate, it is important that they obtain the Order to Continue as soon as possible following the Deceased’s death, as otherwise they may risk the proceeding being dismissed for delay.
As with any matter regarding the administration of an estate, it is important that the Estate Trustee receive competent legal advice concerning the proceeding before deciding whether to continue it on behalf of the estate. While there could be cost consequences to the estate for not continuing with the proceeding, there is certainly no obligation that the Estate Trustee continue the proceeding on behalf of the estate if they consider it unwise to do so. Issues such as whether the proceeding has any merit, and exposure to cost consequences, are important factors for the Estate Trustee to consider.
Thank you for reading.