Decedents do not have capacity for suits and motion for dismissal based on capacity can be made at any stage of proceedings

SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App May 19, 2009).

In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.

The full text of this opinion can be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf