by Anthony Eden
Estate Executors and Personal Representatives
The concept of the executor or personal representative for an estate is one that has the potential to cause problems. In estate administration situations, an individual may have two roles; as executor or personal representative of the deceased (distributing inheritances, paying taxes, etc,) and then as a beneficiary of the estate.
In amicable estate administrations this dual role usually does not cause problems but in some cases, especially where disgruntled siblings or second spouses are involved, the dual role has the potential to create conflict. Especially during litigation between one or more of the beneficiaries.
A resulting trust is where property is transferred to someone who pays nothing for it and then is implied to be holding the property for the benefit of another person or the estate as a whole. In a situation where one beneficiary alleges a resulting trust they are attempting to recover this property on behalf of the estate as a whole not in their personal capacity as a beneficiary. As it is the estate as a whole that benefits from the recovery of property from a person who did not pay for it.
When an individual is allegedly holding property in trust and is also the executor there is a real conflict. There is legislation in British Columbia which recognizes this inherent conflict and provides a practical solution (s. 151 of the Wills, Estates, and Succession Act.) The case law surrounding s. 151 is not well developed as there have been few decisions regarding it.
Terezakis v. Ekins, 2018 BCSC 249
In a recent Supreme Court of British Columbia decision named Terezakis v. Ekins, 2018 BCSC 249, it was successfully argued before Madame Justice Morellato that the application of s. 151 was relevant.
The client was the son of the deceased and a one-third beneficiary of the estate along with his two siblings with whom he shared an acrimonious relationship. In the process of administering the estate the client alleged that his sister, the executor, had been gifted property outside of the estate without consideration and that this property should be returned to the estate on a resulting trust.
Technically the client did not have standing to bring the claim against his sister for resulting trust because it was the estate itself which had the cause of action against her. As the sister had been named executor she was unlikely to sue herself.
Application of Section 151
That is where s. 151 comes in: by allowing a beneficiary or successor, with leave of the court, to commence proceedings in the name and on behalf of the personal representative or executor of the deceased person. These proceeding would aim to recover property that could normally only be recovered by the personal representative. The court will grant leave if the beneficiary has made reasonable efforts to cause the executor to commence the action, and has given the executor notice. Further, it must also be shown that the beneficiary (in this case the client, the son) is acting in good faith and that it is “necessary or expedient” for the proceeding to be brought.
If those factors are met the Court may authorize a person to control the conduct of a proceeding as if that party were the executor or personal representative of the deceased for the purposes of the lawsuit only.
Madame Justice Morellato’s ruling
In Terezakis v. Ekins, 2018 BCSC 249, the other party argued that the client was not acting in good faith and that the proceeding for resulting trust was not “necessary or expedient”. Madame Justice Morellato rejected both these assertions.
Madame Justice Morellato agreed that the language of s. 151 required a direction from the Court that the claim would be brought by the estate against the sister, the executor, and that the client could have carriage of the action for resulting trust.
Resulting from the decision by Madame Justice Morellato the lawsuit now reads: “Angela Hrysoula Terezakis, in her capacity as executrix of the Estate of Aikaterini Terezakis v. Angela Hrysoula Terezakis” – i.e. Ms. Terezakis is suing herself. The practical reality is that Ms. Terezakis is not suing herself at all; the applicable legislation and the Courts have intervened in a way to allow the client to proceed against his sister on behalf of the estate as a whole.
This case may have practical consequences on estate litigation in British Columbia as a whole. The prevalence of these types of conflicts within estate administration and the consequent litigation is very common. Luckily for the client, the drafters of the Wills, Estates, and Succession Act had crafted practical legislation and our learned judges are implementing the law in an appropriate manner.