- A beneficiary or intestate successor can, with leave of the court, sue for the estate to recover what is owed to the deceased, or defend proceedings against the estate.
- Leave depends on four things: reasonable efforts to get the personal representative to act, notice to the required parties, good faith, and the proceeding being necessary or expedient to protect the estate.
- Time limits and other options, such as removing the representative, may matter just as much, so get advice early.
Sometimes an estate is owed money or property, or is being sued, and the executor or administrator will not act. If you are a beneficiary or intestate successor, you may feel stuck watching the estate lose value or a claim go unanswered.
British Columbia law gives you a route that does not depend on the representative's cooperation. It requires the court's permission and has conditions, so this article explains how it works, how it links to other options, and why timing matters.
This article covers the law of British Columbia.
What WESA section 151 allows
Under section 151(1) of the Wills, Estates and Succession Act (WESA), a beneficiary or intestate successor can, with leave of the court, start a proceeding on the estate's behalf to recover property or rights owed to the deceased person. Under section 151(2), the same person can, with leave, defend a proceeding brought against the estate.
In plain words, this is sometimes called a derivative action: you act for the estate, not for yourself. Under the Wills, Estates and Succession Act, s. 151, you can sue only with leave of the court, and the court looks at whether you made reasonable efforts to get the personal representative to act, gave notice to the required parties, are acting in good faith, and whether the proceeding is necessary or expedient to protect the estate. It is a route for cases where a representative will not pursue estate claims.
The four requirements for leave
Under section 151(3), leave depends on the following:
- You made reasonable efforts to get the personal representative to bring or defend the proceeding.
- You gave notice to the required parties.
- You are acting in good faith.
- The proceeding is necessary or expedient to protect the estate.
Keep a record of every request you make to the representative, and of the replies, or lack of them. That record is how you show reasonable efforts. Who counts as a required party depends on the circumstances, so confirm this with a lawyer before giving notice.
Testing whether assets were missed
A person applying for a grant must make a diligent search and inquiry to find the property and liabilities of the deceased person, under WESA section 122(1)(a). A beneficiary can use this duty to test whether assets have been left out.
If you suspect something was missed, such as an account, a property interest or money owed to the deceased, ask the representative in writing what searches were done. A weak answer can support your case that action is needed, though what it proves depends on the facts.
Time limits and delays
A court proceeding generally must not be started more than 2 years after the day the claim is discovered. Discovery is the first day the person knew or reasonably ought to have known of the loss, its cause, the defendant's act, and that a court proceeding is appropriate. There is also an ultimate limit of 15 years from the act or omission.
There are exceptions. If the act or omission was wilfully concealed, it is deemed to have happened on the discovery date. Separate rules cover fraud and trust claims, and a trustee bears the burden of proving that a fraud or trust claim was discovered. Because those rules can change the deadline for trust claims, have a lawyer confirm the time limit that applies to you.
Pending proceedings also affect the estate. Once the 210-day period after the grant has passed, the personal representative may not distribute without court consent, or the consent the section requires, if other proceedings may affect distribution. A pending claim can therefore lawfully delay distribution.
Other options when the representative will not act
| Option | What the statute says |
|---|---|
| Remove or pass over the representative | A person with an interest in the estate may apply to the court to remove or pass over a person entitled to act. Grounds include being unable or unwilling to perform duties in a way that hampers administration. |
| Substitute appointed | When the court removes a representative it must appoint a substitute who consents to act, unless administration is complete or a new appointment is unnecessary. The substitute takes over the former representative's authority and duties. |
Removal as personal representative does not by itself remove the person as trustee of a trust under the will, which needs separate relief. Which route fits best depends on whether you want one claim pursued or the whole administration taken over.
What to do next
- Write to the representative asking them to act, and keep copies of everything.
- Note when you first learned of the claim or missing asset, because it may start a time limit.
- Ask what searches were done to find the estate's property.
- Gather the will, the grant, and any documents about the claim.
- Speak with a BC lawyer before applying for leave, giving notice or applying for removal.
Frequently asked questions
Do I need the court's permission to sue for the estate?
Yes. Section 151 says a beneficiary or intestate successor can sue or defend on the estate's behalf with leave of the court. Leave depends on the four requirements in section 151(3).
Who gets the money if I win?
You are acting on the estate's behalf, so the claim is for the estate's benefit. How any recovery is then shared depends on the will or the intestacy rules and on the facts.
Is there a deadline to start?
Generally a proceeding cannot start more than 2 years after the claim is discovered, with an ultimate limit of 15 years from the act or omission. Wilful concealment and trust claims have special rules, so confirm your deadline early.
Can I ask the court to replace the executor instead?
A person with an interest in the estate may apply to remove or pass over a person entitled to act as personal representative. If the court removes one, it must generally appoint a substitute who consents to act.
Sources
- Wills, Estates and Succession Act (WESA), s. 155 — bclaws.gov.bc.ca
- Limitation Act, SBC 2012, c. 13, ss. 6 and 8 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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