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Rule 25 – Substitution of Parties

May 13, 2021 | Civil Law, Massachusetts

(a) Death.

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the representative of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon notice and hearing, be dismissed unless the failure of the surviving party to move for substitution was the result of excusable neglect. If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent’s death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6(b).
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b) Incompetency or Incapacity. If a party becomes incompetent or incapacitated as defined in G.L. c.190B, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation From Office.

(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.

Mass. R. Civ. P. 25

Effective July 1, 1974; Amended June 24, 2009, effective July 1, 2009.

Reporter’s Notes:

(2009): The 2009 amendments reflect changes resulting from the adoption of the Massachusetts Uniform Probate Code.

(1973): Rule 25(a) deals with the substitution of the proper parties in the event of the death of any party. Rule 25(a)(1) treats the situation where the claim for or against the deceased party survives the death. Rule 25(a) is not limited to the situation involving the death of a sole plaintiff whose claim survives or a sole defendant against whom the claim survives. Thus if P sues D(1) and D(2) on a claim which survives a defendant’s death then upon the death of D(1), his representative may be substituted under Rule 25(a)(1).

In the case of death of one of several defendants, where the claim does not survive against the deceased defendant, Rule 25(a)(2) allows the action to continue against the remaining defendants. Thus if P sued D(1) and D(2) on a claim which does not survive a defendant’s death, then upon the death of D(1), the action will continue against D(2).

Under prior law, substitution of the representative of a deceased party could occur in one of two ways: (1) the representative could voluntarily appear; or (2) the surviving party could obtain a court citation requiring the representative to appear and assume the prosecution or defense of the action. Rule 25(a)(1) supplants the citation procedure with the motion for substitution. If it is the representative of the deceased party who seeks substitution, he must give notice to the other parties as provided in Rule 5. If a surviving party seeks the substitution, service must be made upon the representative in the manner prescribed by Rule 4, because the representative is not yet a party.

Rule 25(a)(1) differs in several respects from Federal Rule 25(a)(2). The federal rule requires that the motion for substitution take place within ninety days after the death is suggested upon the record; the Massachusetts rule allows the motion to be made within one year after the date of approval of the bond of the representative of the deceased party. This period is more consistent with prior Massachusetts law for issuance of a citation. Prior law provided for one year from the time the representative had given bond whereas Rule 25(a)(1) provides for one year from the approval of the bond.

Rule 25(a)(1) allows a dismissal of the action upon notice and hearing if the motion for substitution is not timely made, unless the failure of the surviving party to make the motion was the result of excusable neglect. Failure on the part of the decedent’s representative to notify the surviving party within a reasonable time from the approval of the bond and to file a suggestion of death upon the record requires a finding of excusable neglect.

Rule 25(b) does not alter prior practice. Neither does Rule 25(c). See Henri Peladeau Lte. v. Fred Gillespie Lumber Co., 285 Mass. 10, 13-14, 188 N.E. 380, 381-382 (1933); Shapiro v. McCarthy, 279 Mass. 425, 428, 181 N.E. 842, 843 (1932).

Rule 25(d) changes prior practice slightly by allowing substitution of a successor officer in place of the officer against whom the action was originally brought. See Knights v. Treasurer & Receiver General, 236 Mass. 336, 341, 342, 128 N.E. 637, 639 (1920).