By Patrick McMurchy
Section 151 of the Wills, Estates and Succession Act, (“WESA”) authorizes a beneficiary to commence or defend an action on behalf of an estate. In order to qualify, the person must be a beneficiary under a will or under the rules which apply if there is no will.
Under s. 151 the type of actions a beneficiary may be allowed to bring or defend is defined: actions to recover the deceased’s property that was given away or gifted before the deceased’s death, or actions to pursue damages for breaches of a right, duty or obligation owed to the deceased.
Previously, such proceedings could only be brought or defended by the personal representative of the deceased, (commonly called the executor), except where the executor gave the beneficiary permission to act.
Under WESA the beneficiary must show that the executor has been asked to take the action themselves but has declined. This is required because there may be good reasons why the executor has decided not to act. On one hand , the executor might refuse to act where the executor, or a child of the executor, was the recipient of the deceased’s pre-death gifting. On the other hand, the proposed action may lack merit and expose the estate to risks such as costs as well as the delay and inconvenience of that a court action inevitably brings.
Section 151 requires the beneficiary to obtain court approval before taking action. When that approval is asked for the court will consider whether the proposed action is in the best interests of the estate overall. Essentially, the beneficiary must show first, there is merit to the proposed action and second, the risk inherent in the court action is at least potentially worth the reward should the action be successful.
This short article is intended to give the reader a general understanding of some of the basic principles respecting when a beneficiary can act on behalf of an estate. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.