Estate lawyers in Vancouver discuss the process a beneficiary must take to sue the personal representative of the deceased

Vancouver, BC -- (ReleaseWire) -- 01/23/2019 --As a team of estate lawyers in Vancouver, the lawyers at Kushner Law Group are often consulted by beneficiaries who are unhappy with the current administration of an Estate. A beneficiary under a will is restricted in his or her ability to sue in the name of the personal representative of the deceased person. The Wills, Estates and Succession Act imposes this restriction under the condition that a beneficiary must obtain leave of the court before bringing such a suit. For more, go to: http://www.kushnerlaw.ca/beneficiaries-ability-to-sue-estate-part-1/

In the case of Jang v. Jang, 2018 BCSC 1649, obtaining such leave was discussed in the case wherein the Honourable Mr. Justice Basran made the following statements:

[23] Pursuant to subsection 151(1) of the WESA, the plaintiffs require leave to bring claims in resulting trust, undue influence, debt, breach of fiduciary duty, and an accounting in the name of and on behalf of Douglas as personal representative of the estate. That section states:

(1) Despite s. 136, a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative 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;

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

[25] Subsection 151(3) sets out the requirements that must be met for a court to grant this leave:

(3) The court may grant leave under this section if:

(a) the court determines the beneficiary or intestate successor 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 beneficiaries or intestate successors, and

1. 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 beneficiary or an intestate successor for the proceeding to be brought or defended.

[26] A proceeding may be "necessary" if the personal representative is unwilling or unable to proceed or it may be "expedient" if it is in the best interests of the estate. That proposition is from Bunn v. Bunn Estate, 2016 BCSC 2146

To learn Justice Basran's conclusion in the case of Jang v. Jang, check back soon. The follow-up will be published as a new blog post later this month.

For anyone who requires assistance with Estate litigation, the lawyers at Kushner Law Group are happy to sit down and discuss the particulars of a case. Contact the Kushner Law Group today to schedule a consultation.

About The Kushner Law Group
The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Kushner Law Group
Lars Kushner
Phone 604-629-0432 Fax 604-689-4451
Company website: http://kushnerlaw.ca/
1008 Beach Ave #105