Recent Amendments to BC’s Wills, Estates and Succession Act: Who can sue on behalf of an estate?

Estate Litigation Update – New Amendments to BC’s Wills, Estates and Succession Act: Who can sue on behalf of an estate?

The tools in WESA to allow estate litigation to recover assets on behalf of the estate have been recently expanded. The government of British Columbia recently introduced some minor tweaks in BC’s Will, Estates and Succession Act with respect to clarifying who can seek the court’s permission to bring an action on behalf of the estate, such as recovering property that may have been fraudulently transferred prior to a deceased’s passing.


The new changes affect section 151, a uniquely made in BC, provision. Normally, only a named executor in a will can start an estate litigation claim as only they are the estate’s legal representative. Section 151 allows someone who is not an estate’s legal representative to seeks the court’s permission, or “obtain leave” to start a lawsuit on the estate’s behalf. This can be useful in situations where an executor (who may have received some illicitly transferred assets) is either unwilling or unable to take action on the estate’s behalf.


The relevant section is below:


Beneficiary or intestate successor may sue with leave of court

151   (1)Despite section 136 [effect of representation grant], 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, or

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


Prior to the new changes, the only people who were eligible to take advantage of this provision were those who were a beneficiary under a will, or an “intestate successor”, meaning someone who would be entitled to an inheritance if the person had died without a will. In those cases, the Wills, Estates and Succession Act, sets out which family members are entitled to an estate.


The problem with this strict definition is that a child who was excluded from a valid will would not be able eligible to apply for leave. As long as there existed a valid will that excluded them, they were neither a beneficiary (since they received nothing) nor an intestate successor since the will is valid. This created a seemingly unfair problem for those stuck in this situation.


The BC Supreme Court was faced with this exact scenario in the case of Sharma v Sharma, 2018 BCSC 1262. In Sharma, a sibling was excluded from her mother’s will. Additionally, the deceased transferred a $1.5M house into joint names with the other sibling. As a result the house did not form part of the estate. The excluded sibling brought a claim to vary her late mother’s will and recover the house on behalf of the estate. However, as a non-beneficiary of a valid will, she was not eligible to seek leave under section 151 to bring the claim. As a way around this problem, she sought a “declaratory judgment” that the house was held in trust for the estate in his personal capacity, rather than bringing a claim on behalf of the estate.


The court found that section 151, as it was written, does not address claims brought by a person who is not a party such a beneficiary or an intestate successor:

“[29]        In addition, the purpose of s. 151 must be considered. It addresses the situation where a personal representative refuses to take action leaving an intestate party with the remedy of removing the personal representative in order for a beneficiary or intestate successor to commence or defend proceedings on behalf of the estate. As noted in the Interpretive Guide at p. 80 “section 151 overcomes a gap in the present law, by allowing a beneficiary or an intestate successor to bring or defend proceedings on behalf of the estate in the name of the personal representative.” 

[30]        Also, as noted by the Court of Appeal in Byrn“[t]he section is an attempt to balance the rights of beneficiaries and successors with the broader interests of the estate as a whole” (para. 31). It does not address a claim brought by a person who is not a party, in this instance by being neither a beneficiary or intestate successor.

[31]        As noted the plaintiff asserts she is personally seeking a declaratory judgment respecting the present legal status of the Property. She is not advancing a claim on behalf of the estate to recover property.”


Likely the Sharma was the catalyst for the legislature to address this oversight as section 151 was newly amended to include the following wording:


Who may sue with leave of court

151   (0.1)In this section, “specified person” means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1)Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate 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, or

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


The effect of the changes is that persons, like the plaintiff in Sharma, who are neither a beneficiary, or intestate successor, but would be eligible to pursue a wills variation claim for being excluded, would be eligible to bring a claim to recover assets.


This important change makes it easier for family members such as spouses or children who have been excluded from a will to take action in situations where large assets have passed outside the estate in suspicious circumstances and need to start an estate litigation claim. If you have been excluded from a loved one’s estate or are concerned about assets that may have gone “missing” talk to a lawyer to get more information about your rights.

Go to top
Richter Trial Law