Is the Executor Required to Probate the Will Before Suing on Behalf of an Estate?

The answer in British Columbia appears to be not necessarily. But if someone challenges the validity of the will appointing the executor, the court may require that the executor prove the will before the executor can proceed with the lawsuit.

The British Columbia Court of Appeal recently considered this issue in Romans Estate v. Tassone, 2009 BCCA 421. Before he died, Andries Rudolph Romans transferred his house (subject to his right to live in it for ten years) to Angelo Tassone. He transferred the house in December, 2002. He later signed a will dated November 5, 2004, in which he named Carole Cardinal as his executor and left his estate to her.

After Mr. Romans' death, Ms. Cardinal filed a suit on behalf of his estate against Mr. Tassone claiming that Mr. Romans did not have the legal capacity to give the house to Mr. Tassone, and that Mr. Tassone exercised undue influence over Mr. Romans. She also sued the lawyer who acted for Mr. Romans in the transaction, alleging that he was negligent.

Ms. Cardinal asked for the conveyance file from the lawyer, who refused on the grounds that it was subject to solicitor and client privilege. Both Mr. Tassone and the lawyer also challenged Ms. Cardinal’s right to sue on behalf of the estate, arguing that the will appointing her was invalid.

In the Supreme Court of British Columbia (at 2009 BCSC 194), Mr. Justice Savage granted an order staying Ms. Cardinal’s suit against Mr. Tassone and the lawyer until she proved the will in solemn form. In other words, she would have to establish in a trial that the will is valid before proceeding in the claim against Mr. Tassone and the lawyer. Unless the will is valid, she would not have the right to sue on behalf of Mr. Romans’ estate.
Mr. Justice Savage wrote at paragraph 40,

[40] The authorities in my view make several matters clear: (1) an action can be commenced without obtaining probate, as an executor’s authority is based on the
will, (2) before proceeding with an action already commenced, the parties to an action may require that the Plaintiff prove their authority by producing letters probate, (3) the court may require that a Plaintiff prove their authority, by producing letters probate, of its own motion, when appropriate and (4) the court may order a stay of proceedings any time after the commencement of an action where it is in the interests of justice to do so, pending the issuance of letters probate.

After hearing Ms. Cardinal’s appeal, the Court of Appeal upheld Mr. Justice Savage’s order.

On the issue of whether an executor may start a suit without probate, Mr. Justice Low wrote at paragraph 17:

[17] The law seems to be clear that an executor can bring an action in his or her capacity as executor before probate is granted but cannot obtain judgment in the action without probate having been granted: see Chetdy v. Chetdy, [1916] 1 A.C. 603 (P.C.), cited by Allen J. in Harshenin v. Bayoff, [1991] B.C.J. No. 3161 (S.C.).

The Court of Appeal also upheld Mr. Justice Savage’s ruling that the lawyer’s conveyance file is subject to solicitor and client privilege. But if Ms. Cardinal is successful in proving the will, she will be entitled to waive the privilege on behalf of the estate. This is because as executor she would have the authority Mr. Romans had while he was alive.