Can You Sue an Out-of-Province Executor in a BC Court?

Perhaps the executor of a BC estate now lives in Alberta, Ontario or abroad, and you are a beneficiary who is not getting answers. It is natural to wonder whether you have to chase them through a court somewhere else.

The short answer is that it often does not matter where the executor lives. BC law has specific rules on when a BC court can hear a case against someone outside the province. This article walks through those rules, the exception, and the steps a beneficiary might ask a BC court to take.

This article covers the law of British Columbia.

When a BC court can hear a case

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 main ways it can arise.

• The person submits to the BC court.
• 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 of the dispute.

The last ground is the one that usually matters for an executor who lives elsewhere. The Act then says when that connection is presumed for estates and trusts.

The presumed connection for estates and trusts

For a proceeding about administering a deceased person's estate, a real and substantial connection to BC is presumed where the deceased had immovable property (such as land) in BC, or where the deceased was ordinarily resident in BC at death and owned movable property anywhere. An executor living outside BC can therefore still be subject to BC court jurisdiction.

For a proceeding against a trustee about carrying out a trust, the same presumption applies in several situations.

Even where the presumption applies, the court can still decline to hear the case if another forum is more appropriate, as the next section explains.

The exception: a more appropriate forum

Having jurisdiction does not guarantee the BC court will keep the case. A BC court may decline to hear a proceeding if a court of another state, which includes other provinces and foreign countries, is a more appropriate forum.

In deciding, the court considers the following:

• The convenience and expense of the parties and witnesses.
• The law that applies to the dispute.
• The goal of avoiding multiple proceedings and conflicting decisions.
• Whether a judgment could be enforced.

For example, if most of the assets and witnesses are in another province, the executor may ask the court to send the dispute there. How that plays out depends heavily on the facts.

What a beneficiary might ask a BC court to do

If a BC court can hear the case, there are several steps a beneficiary may be able to pursue, depending on the circumstances.

• Compel accounts. Executors, administrators and trustees under a will must generally obtain an order for passing their first accounts within two years of the grant or appointment, subject to exceptions in the Trustee Act. A beneficiary can also serve notice requiring accounts to be passed annually. A trustee who fails to pass accounts may be called before the court to explain why.
• Seek removal. A person with an interest in the estate may apply to remove or pass over a person entitled to act as personal representative. Grounds include incapacity or being unable or unwilling to perform duties in a way that hampers administration.
• Ask for a substitute. When the court removes a representative, it must generally appoint a substitute who consents to act, and the former grant is revoked. The substitute takes over the former representative's authority and duties.

Removal as personal representative does not by itself remove someone as trustee of a trust under the will; that needs separate relief. Whether an exception to the two-year accounting rule applies to you depends on your situation, so it is worth confirming with a lawyer.

Time limits to keep in mind

In general, a court proceeding must not be started more than 2 years after the day the claim was discovered. A claim is discovered on 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.

Special rules apply to fraud and trust claims, so do not assume the two-year period fits them. Whether and when a deadline applies to those claims is something a lawyer should confirm for your situation.

What to do next

• Gather the will, the grant of probate if there is one, and any correspondence with the executor.
• Note where the executor lives and where the deceased lived and owned property, including any BC land.
• Write down when you first learned of the problem, because dates can affect time limits.
• Keep records of requests you made for information or accounts and any replies.
• Speak with a BC lawyer promptly to confirm jurisdiction, the right forum and the deadlines that apply to you.

Frequently asked questions