Commencing Actions on Behalf of an Estate – Part 1

When the Wills, Estates and Succession Act was introduced, it provided Estate Litigation lawyers with a variety of new statutory tools to assist their clients in commencing action with respect to estate. S. 151 of the Wills, Estates and Succession Act (“WESA”) permits litigants to apply to the Court for leave (or permission) to commence an action on behalf of an Estate. This has proven to be a tremendously useful tool to enable litigants to commence actions to potentially protect the interests of beneficiaries.

 

In the recent decision of Terezakis v. Ekins, 2018 BCSC 24, the honourable Madame Justice Morellato was asked to consider an application by the son of the Deceased who wished to commence an action on behalf of the Estate of his deceased mother against his sister who was named as executrix and trustee to the will of the Deceased. The applicant son argued that the Deceased had made a number of transfers to her daughter over the course of her lifetime and that those transfers should be considered to be held as resulting trusts on behalf of the Estate.

 

Madam Justice Morellato summarized an applicable section of s. 151 of WESA as follows:

 

[26]        In addition, ss. 151(3)(b) provides that the court may grant leave, under this        section, assuming the pre-conditions of reasonable efforts, notice and good faith have         been satisfied, where “it appears to the court that it is necessary or expedient for the protection of the estate or the interest of a beneficiary for the proceeding to be   brought…” [Emphasis added.].  That is, the protection of a beneficiary’s interest, such as           that of Mr. T. Terezakis, also informs the court’s discretion in this context.  I will address            the criterion of “necessary or expedient” in greater detail below.  For present purposes,             suffice it to say that,  while I am mindful that Mr. J. Terezakis and Ms. K. Terezakis do    not claim an interest in the Richmond Property, their positions on this issue are not        determinative on the question of whether I ought to exercise my discretion by granting          leave under s. 151 of the Act.

 

In part of this blog series, we will discuss the decision of the Judge in this matter.

 

Estate Litigation Lawyers in Vancouver

If you are involved in Estate litigation or believe that you have been treated unfairly under a will, contact the Kushner Law Group today to schedule a consultation.

 

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