Amendments to section 151 of the WESA

Section 151 of the Wills, Estates and Succession Act (the “WESA”), was amended effective September 16, 2019. This section allows someone who is not the deceased’s personal representative to apply to court to make or defend a claim on behalf of the deceased. The amendments make a number of procedural changes, some of which I will comment on.

As amended, section 151 now says:

151   (0.1)In this section, "specified person" means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1)Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate 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, or

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

(1.1)A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.

(2)Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.

(2.1)A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.

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

(a)the court determines the specified person 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 specified persons, and

(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 specified person for the proceeding to be brought or defended.

(4)On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

First, this section now allows a person who is not a beneficiary or intestate successor, but who is making a claim to vary the deceased’s will, to apply under section 151. A spouse or child who may apply under Part 4, Division 6 of the WESA for a share or larger share of the deceased’s estate. As was noted in Sharma v. Sharma, 2018 BCSC 1262, a wills variation claimant did not have standing under section 151 unless she was already a beneficiary. Now the definition of “specified persons” including wills variation claimants.

Second, it is clear now that the person applying under this section may file a notice of civil claim or petition before making the application. This may be inferred from subsection (1.1) which says that leave may be applied for in the proceedings for which the applicant is seeking leave.

Third, the wording of this section used to say that the person making or defending the claim was to do so “in the name and on behalf of the personal representative of the deceased person.” If say a beneficiary wished to make a claim for the benefit of the estate against the personal representative, she would have to name the personal representative as both a plaintiff and defendant, which is absurd. Now the person making or defending a claim does so in her own name “and on behalf of the estate of the deceased person.”