Death, Marriage and Insolvency of Parties

In one line

A suit does not die because a party does. It abates only where nobody applies in time to bring the dead party's representative on the record.

Why the Code deals with this

Litigation takes years and people die in the middle of it. If a suit ended whenever a party died, a defendant could simply wait, and a plaintiff's family would lose a claim that was nearly won. If it carried on regardless, a decree would be passed against somebody who was not there to defend it.

So the Code asks one question first, and everything follows from the answer: does the right to sue survive? If it does, the suit continues, with the estate represented. If it does not, the suit is at an end because there is nothing left to litigate.

The governing rule: Rule 1

Rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

That is the principle, and it is what makes abatement the exception rather than the rule. A right to sue survives in most civil matters: a debt, a claim to property, a contract. What does not survive is a purely personal action, on the old maxim actio personalis moritur cum persona, an action which is personal dies with the person, of which defamation and personal injury claims are the classic examples.

One of several parties dies: Rule 2

Rule 2: where there are more plaintiffs or defendants than one and any of them dies, and the right to sue survives to the surviving plaintiffs alone, or against the surviving defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of, or against, the survivors.

Note that no application is needed and there is no question of abatement. The Court simply records the death and the suit goes on. Rule 2 applies only where the right to sue survives to or against the survivors alone, which is the case with joint rights.

A sole party dies, or the right does not survive to the survivors: Rules 3 and 4

Rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, or where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court shall, on an application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

Rule 3(2): where within the time limited by law no such application is made, the suit shall abate so far as the deceased plaintiff is concerned; and on the defendant's application the Court may award him the costs he incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.