Understanding Section 151 Of The WESA: Recent Decisions Provide Clarity

• Published date: 01 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Scott Kerwin

The Wills, Estates and Succession Act (WESA) came into force in British Columbia on March 31, 2014. This legislation brought about a significant reform of this province's wills and estate administration law. One of the most notable reforms introduced by the WESA is the ability of the court, under s. 151, to authorize a person other than the personal representative of the estate (i.e. the executor or administrator) to bring an action in the name of the estate, or defend an action on behalf of the estate. This provision is commonly understood as the functional equivalent of derivative actions in the corporate context whereby shareholders have a similar ability to litigate on behalf of the company. Section 151 removes barriers on standing that flow from the legal principle that the personal representative of the estate has the exclusive right to bring or defend claims on behalf of the estate. In situations whether the personal representative is unwilling or unable to make a claim, perhaps due to a conflict of interest, a beneficiary or other interested persons caught by s. 151, and termed "specified persons", can seek the leave of the court to take such steps. These cases often include claims of "missing assets" that must be recovered for the benefit of the estate.

A line of authority has developed on the proper interpretation and application of s. 151 (including its amendments). A leading case on the substantive test for leave had been Bunn Estate, 2016 BCSC 2146 in which the approach to derivative actions in the corporate context was explicitly adopted. Over the years, a measure of confusion has arisen about this provision of the WESA, particularly in regards to procedure. Two recent cases, however, have brought a welcome degree of clarity.

Broadening the substantive test for leave: Hoggan v. Silvey, 2022 BCCA 176

The decision of the Court of Appeal in Hoggan v. Silvey, 2022 BCCA 176 (24 May 2022, Bennett, Goepel and Grauer JJ.A.), rev'g 2021 BCSC 971 (20 May 2021, Murray J.) significantly broadens the substantive test for granting leave under s. 151. In this proceeding, two children of the Deceased sought leave to bring an action against the defendant executors for misappropriation of funds during the Deceased's lifetime, as well as seeking an order that some jointly-owned assets are held in trust for the estate. The chambers judge applied the factors from Bunn Estate on whether the proposed proceeding would be necessary or expedient. Justice Murray was...