Wednesday, July 4, 2007
Chris Tymchuck (J.D. Candidate 2008, William Mitchell College of Law) has recently published her Note entitled A Procedural Quagmire: How to Proceed with an Action in Minnesota When a Client Dies en pendente lite, 33 Wm. Mitchell L. Rev. 1187 (2007).
Here is the conclusion of her article:
The Minnesota Supreme Court has stated that the legislature has the authority to regulate the practices of the probate court as long as it does not deprive the court of its constitutional jurisdiction. Therefore, it is not a violation to enact rules to govern the procedure of an action after a client dies. A concrete procedure would give Minnesota practitioners a clear path to follow in working toward a beneficial conclusion for their deceased clients.
The procedure outlined in this Note allows all parties involved to be notified in a timely manner of the death of a party. In addition, it puts both the district and probate courts on notice of the death and of the need to substitute parties. This allows both courts to ensure that the status quo of the lawsuit is preserved pending the appointment of the proper personal representative.
The emergency appointment of a representative to appear on behalf of the deceased client prevents the matter from defaulting due to inaction. And the opposing party still has the opportunity to settle the matter by negotiating with the personal representative appointed by the court, with the court having final approval of the settlement. No other jurisdiction has enacted rules specific to handling a survival action. Thus, Minnesota has an opportunity to act as a model for the rest of the country.