When an Executor Refuses to Sue: Lessons from Kirkwood v. Gubisch

What happens when the executor refuses to pursue claims that could benefit the estate?

That question was at the heart of the British Columbia Supreme Court’s decision in Kirkwood v. Gubisch, 2026 BCSC 1080. The decision is important because it illustrates that estate litigation is often about far more than challenging a will. It is equally about ensuring that the estate itself has been properly protected.

The Background

The dispute arose following the death of a British Columbia man whose estate plan dramatically altered the expectations of his family. The deceased had developed a close relationship with his live-in caregiver during the final years of his life. In 2020, he executed a new will appointing the caregiver and his solicitor as executors. Under that will, the caregiver became the sole beneficiary of the estate. His adult daughter, who had expected to benefit from her father’s estate, received nothing.

That alone would not necessarily be unusual. British Columbia’s Wills, Estates and Succession Act (“WESA”) recognizes that individuals generally have testamentary freedom, while also allowing spouses and children to apply to vary a will that fails to make adequate provision for them. However, the daughter’s concerns extended beyond the terms of the will itself.

She alleged that before her father’s death, significant assets had been transferred out of his name and into joint ownership with the caregiver. If those transfers were invalid, the assets ought to have formed part of the estate. If they remained outside the estate, they would not be available for distribution or for a potential wills variation claim.

In other words, before deciding who should receive the estate, the parties first had to determine what property actually belonged to the estate.

A Problem Faced by Many Beneficiaries

Suppose a beneficiary believes:

  • money disappeared from bank accounts before death;
  • real property was transferred without proper authority;
  • investments were moved into joint ownership shortly before death;
  • a caregiver exercised undue influence over an elderly person; or
  • someone abused a power of attorney.

Many people assume the beneficiary can simply commence legal proceedings to recover those assets. Usually, they cannot. Claims to recover estate property belong to the estate itself. Because the executor represents the estate, it is ordinarily the executor who decides whether litigation should be commenced. That system works well where the executor is independent. It becomes much more difficult where the executor has an actual or perceived conflict of interest, or where the executor simply refuses to investigate potentially valuable claims.

The Central Issue in Kirkwood

The daughter argued that viable claims existed to recover assets for the estate. The executors declined to pursue those claims. This created an obvious problem. If only the executors could sue, and the executors refused to do so, potentially valuable claims might never be investigated. Assets that may properly have belonged to the estate could remain permanently outside it.

The court therefore had to consider whether the daughter should be permitted to pursue those claims despite not being the estate’s personal representative. That issue may sound procedural, but it has enormous practical consequences. Without standing to bring the claim, the alleged wrongdoing might never be examined by the court.

Why Standing Matters

Lawyers often refer to this issue as one of standing—the legal right to commence proceedings. Standing is more than a technical rule. It reflects the broader principle that litigation should generally be conducted by the person legally responsible for the rights being asserted.

An executor owes fiduciary duties to the estate and to its beneficiaries. The law therefore ordinarily entrusts the executor, not individual beneficiaries, with litigation decisions. But the law also recognizes that rigid adherence to this rule can sometimes produce unfair results. If an executor refuses to pursue a legitimate claim because it is inconvenient, because of a conflict, or because the executor is personally implicated, beneficiaries could otherwise be left without an effective remedy. Kirkwood demonstrates the court’s willingness to prevent that outcome where justice requires it.

The Court’s Approach

Rather than focusing narrowly on procedural rules, the court considered the practical realities of estate administration. The daughter alleged that the estate had suffered losses through transactions completed before death. Those allegations had not yet been proven. The court was not deciding whether the caregiver had acted improperly or whether the transfers were ultimately invalid. Instead, the court considered whether the claims themselves were sufficiently arguable that they should be allowed to proceed. This distinction is important.

Courts are careful not to decide disputed facts on preliminary applications. Instead, they ask whether the pleadings disclose a reasonable cause of action and whether there is a legitimate basis for allowing the litigation to move forward. By permitting the claims to proceed, the court recognized that allegations involving estate assets should generally be determined on their merits rather than being dismissed at an early stage because of procedural obstacles.

The Difference Between Increasing an Estate and Dividing an Estate

One of the most valuable lessons from Kirkwood is the distinction between two very different types of estate litigation. The first asks: How should the existing estate be divided? This includes wills variation claims under WESA. The second asks: What property should actually be included in the estate?

These claims may involve:

  • resulting trusts;
  • constructive trusts;
  • undue influence;
  • breach of fiduciary duty;
  • unjust enrichment;
  • powers of attorney;
  • joint tenancy disputes; or
  • recovery of improperly transferred assets.

The distinction matters because a successful recovery action can substantially increase the size of the estate before any beneficiary receives a distribution. For beneficiaries, recovering missing assets may ultimately be worth far more than arguing over the distribution of assets already within the estate.

Executors Are Decision-Makers—But Not Beyond Review

Some people mistakenly believe an executor’s decisions cannot be challenged. That is incorrect. Executors have significant discretion, but they are fiduciaries.

Among other duties, they must:

  • protect estate property;
  • investigate legitimate claims;
  • avoid conflicts of interest;
  • act honestly and in good faith;
  • exercise reasonable judgment; and
  • administer the estate in the best interests of all beneficiaries.

Courts generally do not interfere simply because a beneficiary disagrees with an executor’s litigation strategy. However, where an executor refuses to investigate substantial claims or is unable to act impartially, judicial intervention may become appropriate. Kirkwood reflects that principle.

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