Beneficiaries Ability to Sue Estate – Part 1

As Vancouver Estate lawyers we are often consulted by beneficiaries who are unhappy with the current administration of an Estate. A beneficiary under a will is restricted in his or her ability to sue in the name of the personal representative of the deceased person. The Wills, Estates and Succession Act imposes this restriction under the condition that a beneficiary must obtain leave of the court before bringing such a suit. Obtaining such leave was discussed in the case of Jang v. Jang, 2018 BCSC 1649, wherein the Honourabe Mr. Justice Basran stated:

Beneficiaries Ability to Sue Estate

[23] Pursuant to subsection 151(1) of the WESA, the plaintiffs require leave to bring claims in resulting trust, undue influence, debt, breach of fiduciary duty, and an accounting in the name of and on behalf of Douglas as personal representative of the estate.  That section states:

(1) Despite s. 136, a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person:

(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative;

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.


[25] Subsection 151(3) sets out the requirements that must be met for a court to grant this leave:

(3) The court may grant leave under this section if:

(a) the court determines the beneficiary or intestate successor seeking leave

(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,

(ii) has given notice of the application for leave to

(a) the personal representative,

(b) any other beneficiaries or intestate successors, and

  1. c) any additional person the court directs that notice is to be given, and

(iii) is acting in good faith, and

(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.


[26] A proceeding may be “necessary” if the personal representative is unwilling or unable to proceed or it may be “expedient” if it is in the best interests of the estate.  That proposition is from Bunn v. Bunn Estate, 2016 BCSC 2146.


Wills and Estates Litigation Lawyer in Vancouver

If you are beneficiary to an estate or are involved in Estate litigation, contact the Kushner Law Group today to schedule a consultation.


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