K.s.a. 60-268 - Motion For Substitution Form (Page 2 of 3) in pdf

CERTIFICATE OF MAILING

The undersigned hereby certifies that a copy of the above Motion for Substitution

and Notice of Hearing was mailed to the following, postage prepaid, on the

day of

, 2

(Attorney)

Authority

K.S.A. 60-225, 60-1801, 60-1802.

Notes on Use

This form only deals with substitutions necessitated by death or incapacity. The language should be adapted for

other circumstances requiring a substitution of parties. “Incapacitated person” is defined in K.S.A. 77-201 Thirty-first.

K.S.A. 60-225 provides for the substitution of parties in the instances of death, loss of capacity, transfers of

interest, or death or separation from office of a public officer. The rule is not applicable to any other situations, although

parties may also be added or dropped pursuant to other procedural rules, such as those governing joinder, intervention,

and real party in interest. In the instance of a party’s death, K.S.A. 60-225(a)(1) provides for substitution of parties only

in cases in which the claim prosecuted or defended by the deceased party is not extinguished by the party’s death. K.S.A.

60-1801 governs which causes of action survive the death of the person entitled to or liable for those causes of action.

K.S.A. 60-1802 states that only libel, slander, malicious prosecution and nuisance actions are abated by the death of a

party when the action is pending in any court. The court is required to dismiss the deceased party if a motion for

substitution is not filed within a “reasonable time” after the party’s death is suggested upon the record. The Motion for

Substitution, along with a Notice of Hearing, must be served on all parties as set forth in K.S.A. 60-205, and upon

nonparties in the same manner as service of a summons. A motion under this section can be made by any party or by the

successors or representatives of the deceased party.

A motion for substitution for a party that becomes incapacitated is made in the same way as when a party dies,

but the substitution is permissive rather than mandatory. Substitution is also permissive in cases involving a transfer of

interest. The court can direct the person to whom the interest is transferred to be substituted or joined with the original

party, or may simply allow the action to continue by or against the original party.

When a public officer is a party to an action and subsequently dies, resigns or is otherwise separated from office,

K.S.A. 60-225(2)(d) allows the action to be continued and maintained by the public officer’s successor. If not successor

is appointed or elected, the court may appoint a successor to prosecute or defend the action.

K.s.a. 60-268 - Motion For Substitution Form Page 2