Who Can Sue on Behalf of the Estate?
Section 151 of the Wills, Estate and Succession Act, SBC 2009,c 13 was amended and took effect on September 16, 2019. This section defines who, other than the personal representative of the deceased’s estate, may apply to the court for permission to make or defend a claim on behalf of the deceased, and under what circumstances.
Wills, Estates and Succession Act, SBC 2009, c 13:
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.
(1.1) A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.
(2) Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.
(2.1) A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.
(3) The court may grant leave under this section if:
(a) the court determines the specified person 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 specified persons; and
(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 specified person for the proceeding to be brought or defended.
(4) On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.
The Specified Person
Sharma v Sharma, 2018 BCSC 1262 confirmed that a claimant of a wills variation did not have standing to apply to the court for permission to make or defend a claim on behalf of a deceased, unless they were already a beneficiary of that deceased’s estate. This is no longer the case. Section 151(0.1) has expanded the definition of who may apply to include a claimant of a wills variation proceeding against the deceased’s estate.
Making or Defending a Claim Against the Personal Representative
Prior to these amendments, a person making or defending a claim was to do so “in the name and on behalf of the personal representative of the deceased person.” This led to absurd procedural circumstances. For example, if a beneficiary made a claim for the benefit of the estate against the personal representative, the beneficiary would be required to name the personal representative as both a plaintiff and defendant in the action. Section 151(2) now provides that a person make or defend a claim on behalf of the estate against the deceased or the personal representative, “in the name of the specified person and on behalf of the estate of [the] deceased person.”