A personal injury lawsuit does not end when the plaintiff dies. It pauses until the estate’s executor or administrator is substituted as the plaintiff, and then it continues, sometimes with different damages available and sometimes with a new claim added for the family. This page explains the mechanics in New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador: who steps in, which claims survive, and the deadlines the estate has to meet.
The Lawsuit Pauses When the Plaintiff Dies and the Estate Continues It
The action is suspended when the plaintiff dies. It does not disappear, but it cannot move until a legal representative is appointed to stand in the deceased’s place. That is the executor named in the will, or an administrator appointed by the court where there is no will. The Mike Murphy Law Group’s first task is the “revivor” of the action, so the estate can continue the claim the deceased was already entitled to.
The damages available may change. In several Atlantic provinces the claim for pain and suffering (non-pecuniary general damages) is limited or extinguished, depending on when the death occurred and the province’s statute. Special damages, such as medical expenses incurred before death and wages lost up to the date of death, generally survive. The firm reviews the timing and the statute to protect as much of the claim as the law allows.
If the death resulted from the injuries in the lawsuit, the claim can be amended to add a claim under the provincial Fatal Accidents Act, which lets family members recover for their own losses: guidance, care, companionship and financial support. If the death was unrelated, the original claim continues as a “survival action” for the losses the deceased suffered while alive. Which path applies turns on the cause of death.
The Survival of Actions Act Keeps the Claim Alive for the Estate
Each Atlantic province has a Survival of Actions Act. Without it the common law rule “actio personalis moritur cum persona” (a personal action dies with the person) would apply and every right to sue would end at death. The statutes reverse that rule for most causes of action.
In New Brunswick the Survival of Actions Act lets the estate continue any action the deceased could have maintained. New Brunswick law typically stops the estate recovering for loss of future earnings or for pain and suffering where the death came before judgment. That is a reason to move a living plaintiff’s case forward without delay, and the firm treats it as one.
Nova Scotia, Prince Edward Island and Newfoundland and Labrador have similar statutes. In Nova Scotia the Survival of Actions Act lets the estate recover out-of-pocket expenses and loss of earnings up to the date of death. The purpose in every province is the same: a defendant does not escape liability because the plaintiff died before trial.
The estate’s steps are:
- Apply for a Grant of Probate or Letters of Administration.
- File a motion to “carry on proceedings” with the court.
- Meet the deadlines; a late application can leave the claim barred by a limitation period.
- Preserve the evidence, because the plaintiff can no longer testify.
A Death Caused by the Injuries Adds a Fatal Accidents Act Claim
Where the injuries caused the death, the existing personal injury claim merges with a new claim under the Fatal Accidents Act. Valuing that claim means valuing the loss of a life to the people who depended on it. The firm handles New Brunswick fatal injuries and the equivalent claims in the other three provinces.
Under the Fatal Accidents Act the eligible beneficiaries, usually spouse, children and parents, claim the financial support they would have received from the deceased, the household services the deceased provided, and in some provinces the loss of care, guidance and companionship. That is separate from the survival action, which covers the deceased’s own losses. The firm files both so nothing is left unclaimed.
In Newfoundland fatal injuries and accidents the firm calculates the dependency loss with economic modelling: how much of the deceased’s income would have supported the family over a working life. The sums are large and insurers contest them hard.
The Executor Becomes the Client and Runs the Lawsuit
The executor or administrator becomes the firm’s client. They hold the authority to accept a settlement or proceed to trial, and they owe fiduciary duties to the estate’s beneficiaries while doing it. The firm explains those duties and the state of the case so the executor can decide.
The executor first proves their authority. In Nova Scotia the Probate Court issues the Grant of Probate. With it, the firm files notice with the court substituting the executor for the deceased plaintiff. That keeps the action alive and stops the defendant applying to dismiss it for lack of prosecution.
The executor also faces a missing witness. Unless the deceased was already examined at discovery, their firsthand account of the accident and its effects is gone. The firm builds the case from secondary evidence: medical records, witness statements and expert reconstruction. The no win, no fee arrangement continues for the estate.
The firm reports to the executor at each stage. The executor is usually a grieving relative, and the file is run with that in mind.
New Brunswick and Nova Scotia Each Set Their Own Rules for the Estate
In New Brunswick the survival action’s limitation period is short. The Survival of Actions Act generally requires an action within two years of the injury, and after a death the estate must act promptly to substitute itself before a deadline passes.
In Nova Scotia car accidents where the plaintiff dies, the Fatal Accidents Act and the Survival of Actions Act operate together. Nova Scotia allows a wider class of beneficiaries to claim for loss of guidance, care and companionship than some other provinces. The firm maps the family to identify every claimant.
New Brunswick’s Section B accident benefits also change on death. If the plaintiff died of accident-related injuries, the estate may be entitled to funeral and death benefits under the deceased’s own or the defendant’s auto policy. These are no-fault benefits, payable whoever caused the accident.
In Nova Scotia the Limitation of Actions Act also applies. If no lawsuit had been filed at death, the estate must meet the provincial deadline, generally two years, counted from discovery in New Brunswick, Nova Scotia and Newfoundland and Labrador and from the event in Prince Edward Island, and the rules on when the clock starts for an estate have nuances the firm checks on every file.
PEI and Newfoundland and Labrador Have Their Own Statutes and Courts
In Prince Edward Island the Fatal Accidents Act is the framework for family claims. The PEI Department of Justice publishes the statutes. A lawyer applies them. The firm identifies the pecuniary losses from a death, including the deceased’s lost pension and employment benefits, because those figures set the family’s long-term security.
The PEI Survival of Actions Act limits some damages. If the plaintiff died of an unrelated cause, the estate cannot recover loss of future earnings. That makes the timing of the lawsuit and the documentation of loss during the plaintiff’s lifetime decisive. The firm builds that record with medical and financial evidence. The PEI fatal injuries page sets out the family claim in more detail.
Newfoundland and Labrador has its own procedure. The Supreme Court of Newfoundland and Labrador has specific rules for substituting parties. On files in St. John’s and elsewhere in the province the firm aligns the probate steps with the litigation schedule. Newfoundland law protects dependants, and the firm uses that protection for spouses and children.
In Newfoundland, “loss of expectation of life” is generally not a head of damage the estate can claim, consistent with the rest of Atlantic Canada. The costs of administering an estate made necessary by an accident-related death can sometimes be claimed, and the firm pursues them where the case law supports it.
The Plaintiff’s Evidence Can Still Be Used After Death
The biggest evidentiary problem when the plaintiff dies is the loss of the central witness. The plaintiff’s own account of the pain, the limitations and the accident is usually the strongest evidence, and the defence will argue the case is now too weak. The firm prepares for that argument.
If the plaintiff was examined for discovery before death, the transcript can usually be read in at trial. That is one reason the firm moves cases to discovery early. Without a discovery, the case is told through medical records describing pain and progress, testimony from family, friends and coworkers about how the plaintiff’s life changed, expert reports on the injuries, and any journal the plaintiff kept during recovery.
The hearsay rule normally prevents witnesses repeating what someone else said. Canadian law’s “principled approach” admits such statements where they are necessary and reliable, and the firm argues for admission of the deceased’s statements where the case needs them.
Insurers Change Tactics After a Plaintiff Dies
Insurers exist to minimize payouts. On learning of a death, they argue that pain and suffering is no longer relevant and that the estate’s claim is worth far less. The firm has answered these arguments for over 40 years.
Delay is the first tactic. The insurer waits for the limitation period on substitution to run, counting on a grieving family to miss it, and may stop interim payments or refuse to negotiate until an executor is appointed. The firm counters by managing the probate process at once and keeping the litigation timetable.
A low early offer is the second. Families face funeral costs and the insurer offers a “nuisance value” settlement in the first weeks. The firm’s advice is not to sign a release without a full review. A proper settlement accounts for every surviving claim, including dependency losses and special damages, and no win, no fee means the family can wait for it.
The firm also checks the insurer’s reading of the statute. Where an insurer wrongly says a head of damage is extinguished by death, the firm points to the section and the case law. Michael B. Murphy, KC, has over 100 reported decisions, and insurers know it.
The Mike Murphy Law Group Handles Revivor and Fatal Accident Claims Across Atlantic Canada
A plaintiff’s death makes the case harder in law and in fact. The firm has the resources for revivor actions and fatal accident claims, with the head office in Moncton and offices across the region.
Michael B. Murphy, KC, a former Attorney General and Minister of Justice of New Brunswick, leads the firm. Whether the underlying case is a car accident, a slip and fall or a long-term disability denial, the legal team knows what happens to a lawsuit when the plaintiff dies and how to protect the estate.
No win, no fee applies to the estate. The firm funds expert reports, court fees and discovery costs, so the family does not draw on the estate to pursue the claim.
Deadlines run from the date of death. Contact the firm early so none is missed.
FAQ
Does a Lawsuit Automatically End When the Plaintiff Dies?
No. Under the Survival of Actions Act in each Atlantic province, the right to continue passes to the estate. The case must be “revived” by substituting the executor or administrator as plaintiff, which takes specific court filings and probate documents.
Can the Estate Still Claim for Pain and Suffering?
It depends on the province and the timing. In many Atlantic provinces, if the plaintiff dies before judgment the claim for pain and suffering (non-pecuniary general damages) is extinguished. The estate can still recover special damages such as medical costs, property damage and wages lost up to the date of death. Ask the firm about your province’s rule.
What If the Accident Caused the Death While the Lawsuit Was Ongoing?
The action can be expanded to include a claim under the Fatal Accidents Act, which lets surviving family members recover their own losses, such as financial support and companionship. The original injury claim and the fatal accident claim usually proceed together.
How Long Does the Executor Have to Continue the Lawsuit?
The underlying claim usually carries a two-year limit, and the procedural rules for substituting a party must be followed promptly or the case can be dismissed. The firm tracks every deadline on the file.
Who Receives the Money If the Lawsuit Is Successful?
A settlement or judgment is paid to the estate, and the executor distributes it under the will or, without a will, under provincial intestacy law. Damages under the Fatal Accidents Act are paid directly to the eligible beneficiaries, such as a spouse or children, instead of to the estate.
Every claim type the firm handles is listed under injury law areas, and the Moncton office takes the first call.