Mayhew v. Dealey, 143 S.W.3d 356 (Tex. App.—Dallas 2004, pet. denied).
After Father’s death under suspicious circumstances, Daughter brought
suit against Son (her brother) for damages resulting from allegedly
causing Father’s death. Daughter prevailed. Son appealed on many grounds
including that Daughter lacked standing to bring a survival action on
behalf of Father’s 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 decedent’s 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 representative’s
interests are antagonistic to the estate. The executor testified and
submitted an affidavit stating that he would not bring a lawsuit in
connection with Daughter’s 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 Father’s 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.