Virginia Code Section 8.01-6.3(B) Provides a Targeted Remedy, but Not a Cure-All, in Cases Involving Fiduciaries

When a suit is filed by a party without standing, or against an improper party, it is a legal nullity, and the filing of such a suit does not stop the clock from running on the statute of limitations.  Remember Sarah Gilbert?  That was the problem she encountered. The first complaint her lawyer filed, which named her parents as parties rather than her, did not stop the clock.  By the time he tried to fix it, it was too late. She would likely still encounter the same problem today, as the rules regarding naming minors and next friends have not changed.

Before 2010, cases involving decedents' estates were subject to the same fate if they reversed the names of the personal representative and the estate. For example, in 2009, the Supreme Court of Virginia decided Estate of James v. Peyton, in which it held that a suit filed by "the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq." was not filed by the proper party and did not stop the clock from running on the statute of limitations.

A year later, the General Assembly enacted Virginia Code Section 8.01-6.3. As stated above, subsection A of that statute prescribed a form by which fiduciaries like executors, administrators, trustees, guardians, and conservators should be named in lawsuits. However, subsection B provided a safety valve in suits involving fiduciaries, stating that: "Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion." When a pleading is amended under that provision, the "amendment relates back to the date of the original pleading." In other words, it is as if the amendment were filed on the date of the original suit, even though the original suit improperly named the fiduciary. Thus, in a case like Estate of James, because the pleadings identified the proper party (the administrator of the estate), they could now be amended to correctly name that party even after the statute of limitations would have otherwise expired.

But what if a pleading just names the estate as a party and does not mention the personal representative at all? The Supreme Court addressed that situation in a 2018 case: Ray v. Ready. In Ray, the plaintiff named the "Estate of Keith F. Ready" as a defendant in a lawsuit. She did not name the administrator of the estate as a party, list her name anywhere in the complaint, or even mention the concept of an administrator or personal representative. Under those circumstances, the trial court dismissed Ray's complaint and ruled that it could not be amended under 8.01-6.3(B) because the proper party, the administrator of the estate, was not named anywhere in the Complaint. Because "relation back" to the date of the original filing was not available, the statute of limitations had run. On appeal, the Supreme Court affirmed.  Because the plaintiff failed to "otherwise identif[y] the proper part[y]," the safe-harbor provision in 8.01-6.3(B) was unavailable, and the plaintiff was time-barred from suing the estate's personal representative.

Kevin W. Mottley
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Richmond, VA trial lawyer dedicated to handling brain injuries, car accidents and other serious injury claims
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