Heir precluded from suing VA because heir did not prove no administration necessary

The United States District Court of Appeals for the Fifth Circuit recently decided in Johnson v. United States, 2008 WL 2753424 (5th Cir. 2008), that decedent’s sister could not bring a tort claim on behalf of the decedent without evidence that there was no administration pending and none was necessary.

Decedent, Edward Johnson, died from a morphine overdose at the Veteran’s Hospital of Dallas without a will, spouse, parents, or children.  His six siblings, including claimant Dorothy Johnson, were his only heirs.  A year and a half after her brother’s death, Dorothy Johnson filed a tort claim with the Department of Veterans Affairs on behalf of decedent.  After not responding to letters from the DVA notifying Johnson that her claim would be denied if she did not probate the estate, the claim was denied and Johnson sued the United States under the Federal Tort Claims Act.  This appeal came after the district court granted the United States’ motion to dismiss, stating that Johnson did not have the legal right to bring a claim on behalf of the decedent.

The Court of Appeals found that to have capacity to bring suit on behalf of the decedent, Johnson must prove that no administration of the estate was pending and none was necessary.  Johnson failed to prove the information and therefore, did not have capacity to bring the suit.

Special thanks to Joshua C. Tate (Assistant Professor of Law, SMU Dedman School of Law) for bringing this case to my attention.