Can You Sue an Executor Who Lives Outside BC in a BC Court?

You may be a beneficiary whose executor or trustee has moved to another province or country. It is natural to wonder whether a BC court can still deal with a problem about how the estate is being run.

The answer turns on a set of jurisdiction rules. This article explains the main ones in plain words, the court's power to step aside, and the time limits that still matter. It is general information, and a lawyer can tell you how it applies to your facts.

This article covers the law of British Columbia.

When a BC court can hear a case against someone outside BC

The Court Jurisdiction and Proceedings Transfer Act sets out when a BC court has what it calls territorial competence over a person. There are four bases.

• The person submits to the BC court's jurisdiction.
• The parties agree that the BC court will hear the matter.
• The person is ordinarily resident in BC when the proceeding starts.
• There is a real and substantial connection between BC and the facts on which the proceeding is based.

For an executor who lives elsewhere, the fourth basis is usually the one that matters, because the first three often do not apply.

Presumed connections for estates and trusts

The Act presumes a real and substantial connection in some estate cases. In a proceeding about administering a deceased person's estate, the connection is presumed where the deceased had immovable property in BC, or where the deceased was ordinarily resident in BC at death and had movable property anywhere. In plain terms, immovable property means land. An executor living outside BC can therefore still be subject to BC court jurisdiction.

A similar presumption applies to a proceeding against a trustee about carrying out a trust. It applies in any of these situations.

• The trust includes BC property, and the relief sought concerns that property.
• The trustee is ordinarily resident in BC.
• The administration of the trust is principally carried on in BC.
• The trust document is governed by BC law.

The court can still decline to hear the case

Having jurisdiction does not mean the court must use it. A BC court may decline to hear a case if a court of another state is a more appropriate forum. Here, another state includes other provinces and foreign countries.

In deciding, the court considers the following.

If the executor lives abroad and most estate assets are there too, expect this question to come up.

Deadlines and other tools once you are in BC court

Being in the right court does not stop the clock. Under the Limitation Act, a court proceeding generally must not start more than 2 years after the day the claim is discovered. Discovery is the first day you 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 period of 15 years from the act or omission.

Special rules apply to fraud and trust claims, and to wilful concealment. Because those rules can change the deadline, do not assume a date for a claim against a trustee. Get advice early.

Two other tools are worth knowing about, without going into detail. A person with an interest in an estate may apply to the court to remove or pass over a person entitled to act as personal representative. A beneficiary may also, with the court's leave, sue on the estate's behalf to recover property or rights owed to the deceased.

What to do next

• Find out where the executor lives and where the estate assets are, including any BC land.
• Check whether the deceased lived in BC at death.
• Look at the will or trust document for any statement about which law governs it.
• Write down when you first learned of the problem, since that date can affect deadlines.
• Keep copies of letters, accounts and messages with the executor.
• Speak with a BC lawyer before starting a case, so you can confirm the right court and the time limits.

Frequently asked questions