Can a Beneficiary Sue on the Estate's Behalf When the Executor Won't in BC?

Sometimes the deceased was owed money or had a claim against someone else, such as an unpaid loan or a dispute with a third party. If the executor will not pursue it, the estate can lose value, and that affects everyone who is supposed to inherit.

British Columbia law gives beneficiaries a way to step in, but only with the court's permission. This article explains how that works, what the court looks at, and what other tools you may have. It is general information, and a lawyer can tell you how it applies to your situation.

This article covers the law of British Columbia.

What WESA section 151 allows

A beneficiary or intestate successor can, with leave of the court, bring a proceeding on the estate's behalf to recover property or rights owed to the deceased. The same person can also, with leave, defend a proceeding that has been brought against the estate.

An intestate successor is someone who would inherit because there is no valid will covering the property. In plain terms, the law lets you act for the estate when the person who should be acting for it is not. What happens with anything recovered depends on your situation, so it is worth confirming with a lawyer.

The four conditions the court considers

Leave depends on four things under s. 151(3). You need to be ready to show each one.

The first condition is the one people most often overlook. A clear written request to the executor, with a reasonable time to respond, is usually the starting point. Keep copies of everything you send and receive.

Related tools if the executor is not acting

• Diligent search: an applicant for a grant must make a diligent search and inquiry to find the deceased person's property and liabilities. You can use this duty to ask whether assets or debts owed to the estate have been missed.
• Removal: a person with an interest in the estate can apply to remove or pass over the personal representative. Grounds include being unable or unwilling to perform duties in a way that hampers administration of the estate.
• Substitute: if the court removes a representative, it must generally appoint a substitute who consents to act. The substitute takes over the former representative's authority and duties.
• Accounts: executors generally must obtain an order for passing their first accounts within two years of the grant, unless exceptions apply. A beneficiary who serves notice can require accounts annually. A trustee who fails to pass accounts may be called before the court to explain why.

Removal has a limit worth knowing. Removing someone as personal representative does not by itself remove them as trustee of any trust under the will, which needs separate relief. Which tool fits depends on whether you want one claim pursued or a change in who runs the estate.

Time limits can keep running

The underlying claim has its own deadline. The basic limitation period is 2 years from 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 limitation period of 15 years from the act or omission. If the act or omission was wilfully concealed, it is treated as having taken place on the discovery date.

Special rules apply to fraud and trust claims, including who must prove when the claim was discovered. Because those rules are specific, do not assume the usual 2-year period fits a claim against a trustee. A lawyer can confirm the deadline for your claim.

What to do next

• Write down what the estate is owed, by whom, and how you found out.
• Ask the executor in writing to act, and keep the reply or the silence on record.
• Note the date you first learned of the claim, since time limits may be running.
• Collect the will, the grant, and any loan or debt documents.
• Speak with a lawyer about whether to seek leave, ask for accounts, or apply to remove the executor.

Frequently asked questions