In Part I of our four-post series on the perils in Virginia estate litigation, we discussed a recent Virginia Supreme Court opinion on proper parties. In that case, naming the "Estate" as the defendant proved fatal to the plaintiff's claims. In Part II of our four post-series on the subject, we discuss another 2010 opinion by the Virginia Supreme Court.
In Antisdel v. Ashby, the Virginia Supreme Court affirmed the dismissal of an action filed by an estate’s administrator for lack of standing—the converse of the complication encountered by the plaintiff in Helou (the subject of our first in a four-post series on standing and proper parties). The estate’s personal representative in Ashby had properly qualified under Virginia law to serve as administrator for the purpose of bringing a wrongful death claim. The administrator later brought suit not to assert a wrongful death claim, but personal injury “survival claims” instead—claims the decedent could have asserted during his lifetime in his own right. The Virginia Supreme Court found that the applicable statute in the title of the Virginia Code governing Wills and Decedent’s Estates permits appointment of an administrator for purposes of bringing personal injury claims, wrongful death claims, or both.
In Ashby, the order granting the appointment only reflected the administrator’s request to bring a wrongful death claim, however. Thus, the administrator lacked standing to prosecute the personal injury or “survival claims.” Affirming the dismissal of the case with prejudice, the court also rejected the administrator’s argument that the trial court should have modified the order of appointment nunc pro tunc.