Mayhew v. Dealey,
After Fatherís death under suspicious circumstances, Daughter brought suit against Son (her brother) for damages resulting from allegedly causing Fatherís death. Daughter prevailed. Son appealed on many grounds including that Daughter lacked standing to bring a survival action on behalf of Fatherís estate because she was not the executor.
The appellate court held that Daughter had standing. The court agreed that normally only a duly appointed personal representative may bring suit to recover property belonging to a decedentís estate such as the survival action in this case. However, there are several exceptions to this rule with one of them being when the personal representative cannot or will not bring the suit or when the personal representativeís interests are antagonistic to the estate. The executor testified and submitted an affidavit stating that he would not bring a lawsuit in connection with Daughterís claims on behalf of the estate. Thus, Daughter had standing to pursue the survival action. (There is also an exception when no administration is pending and none is necessary but this exception did not apply because Fatherís estate was still under administration.)
Moral: An heir may have standing to bring a survival action on behalf of the estate even though a personal representative is currently serving if the representative (1) cannot bring the suit, (2) will not bring the suit, or (3) has interests which are antagonistic to those of the estate.