Can a Beneficiary Sue for the Estate If the Executor Won't in BC?

Sometimes an estate is owed money or property, or is being sued, and the executor simply does nothing. If you are a beneficiary, you may watch the estate lose value while the person in charge will not act.

British Columbia law has a specific route for this situation. It is not automatic and it needs the court's permission, so it helps to understand how it works, what the alternatives are, and why timing matters.

This article covers the law of British Columbia.

What WESA section 151 allows

Under the Wills, Estates and Succession Act (WESA), a beneficiary or intestate successor can, with leave (permission) of the court, start a court proceeding on the estate's behalf to recover property or rights owed to the deceased person. The same person can, with leave, defend a proceeding that has been brought against the estate.

In plain words, the claim belongs to the estate, not to you personally. You are asking the court to let you step into the representative's shoes because the representative will not use the estate's rights.

The four conditions for leave

The court's decision on leave depends on four things under s. 151(3):

• You made reasonable efforts to get the personal representative to bring or defend the proceeding.
• You gave notice to the parties the section requires.
• You are acting in good faith.
• The proceeding is necessary or expedient to protect the estate.

Because the first condition is about reasonable efforts, a record matters. Written requests to the executor, and any replies or silence, are the kind of evidence people usually keep.

Other options when the executor's inaction is the problem

A person with an interest in the estate may apply to the court to remove or pass over a person entitled to act as personal representative. The listed grounds include being unable or unwilling to perform duties in a way that hampers administration of the estate. Passing over means granting probate or administration to someone with lower priority.

If 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 former representative's grant is revoked and the substitute takes over that person's authority and duties. One caution: removal as personal representative does not by itself remove the person as trustee of any trust under the will, which needs separate relief.

Testing whether assets are missing

Someone who applies for a grant must make a diligent search and inquiry to find the property and liabilities of the deceased person. If you suspect assets were left out, that duty gives you a basis to ask what searches were done. What you find may support a request for leave, or an application about the executor.

Why timing matters

A court proceeding generally must not be started more than 2 years after the day the claim is discovered, but separate rules in section 12 of the Limitation Act cover fraud and trust claims, so the general period may not be the whole picture for a claim involving an executor or trustee. 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 limitation period of 15 years from the act or omission.

There is an exception: if the act or omission was wilfully concealed, it is deemed to have happened on the discovery date. How these periods apply to your estate depends on the facts, so waiting for the executor to act is a risk.

What to do next

• Write to the executor, describe the claim, and ask them to act by a reasonable date.
• Keep copies of every letter, email and reply.
• Note when you first learned of the problem, to help work out limitation dates.
• Gather the will, the grant if one exists, and any documents about the claim.
• Speak with a lawyer about whether leave, removal, or both fits your situation.

Frequently asked questions