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K.S.A. 60-268 Suggestion of Death On Record (7/1/05)

[CAPTION] SUGGESTION OF DEATH UPON THE RECORD UNDER K.S.A. 60-225 (a)(1) (Party) (executor) (administrator) (other representative) (successor) of (the deceased party) suggests upon the record, pursuant to K.S.A. (describe as party) during the pendency of this 60-225(a)(1), the death of action. CERTIFICATE OF MAILING The undersigned hereby certifies that a copy of the above Suggestion of Death Upon the Record Under K.S.A. 60-225(a)(1) was mailed to the following, postage prepaid, on the day of ,2 .

(Signature of attorney) (Name), Attorney for plaintiff Bar Registration Number Address Telephone [Facsimile number] [Email address]

Authority K.S.A. 60-225(a)(1). Notes on Use If a party to a lawsuit dies and the claim is not extinguished, then the court must order substitution of the proper parties upon motion. A Motion for Substitution must be made within a reasonable time after the death is suggested upon the record by service of this form.

Comment Where a defendant is dead prior to the commencement of an action, substitution of a special administrator or other personal representative under K.S.A. 60-225(a)(1) is impossible because the trial court has no jurisdiction to proceed. Moore v. Luther, 29 Kan. App. 2d 1004, 1010, 35 P.3d 277 (2001). Where more than six months had passed since defendant's death had been noted on the record, and nothing had been done to substitute a proper party or to appoint a representative who might be substituted as a proper party, the court of appeals found that plaintiff had not moved for substitution within a reasonable time and the action had been properly dismissed. The court noted that "a reasonable time" implies a requirement of due diligence. Livingston v. Bias, 7 Kan. App. 2d 287, 290, 640 P.2d 362 (1982).