Last year, in Part III, probate practitioners were left with a cliffhanger in Mickels as to whether or not an estate could be opened beyond the one-year statute of limitations set forth in RSMo. 473.020 for the sole purpose of appointing a personal representative to pursue a survival action on behalf of decedent under RSMo. 537.020. On January 16, 2018, the Supreme Court of Missouri answered with a resounding NO.
Mickels argued that the probate court, sitting in equity, has the power to extend the time for opening an estate in order to appoint a personal representative for the purpose of pursuing a survival claim. While Mickels advocated that the Appellate Court had created a new cause of action – “deprivation of the opportunity to delay death” – the Supreme Court disagreed, noting that survivorship actions have existed in the State of Missouri since at least 1907 pursuant to RSMo. 537.020.
Ultimately, Missouri’s Supreme Court rejects application of the principles of equity on public policy grounds, deferring instead to the legislature. “Equity should not be used as a basis for relief when doing so would clearly contravene the intent and language of the legislature, ‘particularly in regard to a statutorily created cause of action[.]’ Equity courts are bound by the statutory provisions they are tasked with interpreting.” There currently exists no legislative exception to the one year statute of limitations for opening a probate estate, and the Court noted that “legislative amendment, rather than ‘judicial fiat’, is the appropriate way to increase a statute of limitations period.”
There was one dissent, Judge Draper, who argued that equitable estoppel should have tolled the statute of limitations to allow for opening an estate more than one year beyond the date of death in these limited circumstances.
Regardless, the Missouri legislature will be left to solve this problem…not the courts.
In the meantime, it appears there may be no solid solution to this issue. As 537.020 contains the language “shall” as it applies to standing – meaning the sole person with standing to bring such an action shall be the personal representative of decedent’s estate – the only possible loophole would be to gain appointment of an out of state personal representative to confer standing in a personal injury suit in Missouri. How would that work? Well, if decedent had property in another state, say Florida, who allows for appointments of personal representatives in equitable scenarios, then decedent’s estate might be opened under the laws of the state where decedent may have held property. But this comes with another problem: the personal representative takes on the domicile of the estate, which could create diversity jurisdiction, and result in removal to federal court.