Legal Representation of Estate to sue or being sue – be sued
Our society is becoming more aware of legal rights, and litigations within the statute of the Limitation Act (i.e. the timeline whereby a legal sue must take place) are becoming more common. Sometimes, death can be due to accident, and the estate has the legal right to sue. It is the legal representative (i.e. administrator or executor) of the estate that can sue or be sued on behalf of the estate.
What Type of Suit Can Be Filed?
The particular facts and circumstances surrounding the parties’ dispute dictate what type of case should be filed. There are many different types of suits that can be filed, the most common are:
- Tort Claims – involve a civil wrong, including actions based on negligence, defective products, medical malpractice, nuisance, unsafe premises, and unsafe products. For example, if the deceased died because of a car accident (not of his fault). The estate can sue the driver that caused the accident for compensation.
- Contract Claims – typically based on an alleged breach of the parties’ oral or written agreement and often involves commercial issues; for example, the estate can sue the company for not honouring the employee benefits after the employee dies.
- Family Law Claims- include child custody, support claims and property distribution disputes. For example, if the deceased is a beneficiary of a S49L trust life insurance policy, his death does not extinguish his inheritance rights under this policy. If the trustee does not hold the money for his estate beneficiaries, the estate can sue the trustee.
However, one area of family law claims will be terminated upon death. This is the area of divorce. If 2 parties are undergoing a divorce settlement, and one party dies in the process, the divorce will be null. The surviving party will resume the role and rights of a spouse.
- Property claims – may involve real estate or personal property. For example, the deceased may have a property held in trust by someone. The estate can sue to regain the property.
It should be noted that while an estate can sue; it can also be sued. For example, there was a high profile car accident where the deceased, in a high performance car, beat a traffic light and killed a taxi driver and his passenger. The driver’s estate is being sued by the taxi driver’s family, the passenger’s family and the insurance company.
The legal cost should be paid through the estate account, and, similarly, the compensation should be received by the estate account.