Is Someone Named in a Lawsuit as both an Executor and Personally Separate Persons?

 It is common for a person to be named in an estate lawsuit to be named personally and as an executor or administrator. For example, in British Columbia, in a wills variation claim, it is necessary for the plaintiff to name the executor of a will as well as all the beneficiaries (and anyone else who is entitled to apply to vary the will). If the same person is both the executor and a beneficiary, their name may appear twice: once as executor and once as a beneficiary. The claim may say “Jane Smith v. John Smith as executor of the will of Mary Smith and John Smith in his personal capacity.” (Someday I need to come up with cleverer names for my examples.)

John Smith may be represented by two different law firms, so that one may look after his personal interests as a beneficiary, and the other in respect of his duties as executor. But is John Smith, the executor a different person in law than John Smith, the beneficiary?

The answer is “no, he is not.”

This is succinctly explained by Madam Justice Francis in the Court of Appeal in Rasner v. Berger, 2026 BCCA 166. Laurie Rasner, in her capacity as executor of her stepmother, Adele Hurtig’s will brought a claim asserting that Ms. Hurtig’s son, Richard Berger, held a condominium on a resulting trust for Ms. Hurtig’s estate. She was not successful, and the trial judge ordered that she personally pay costs to Mr. Berger.

Ms. Rasner wanted to appeal against the order that she personally pay costs to the Court of Appeal. Because a party does not have an automatic right to appeal a cost order, she applied for leave to appeal. Her argument was that she was not personally a party to the suit (having brought the claim as executor), and costs should only be awarded against a non-party in exceptional circumstances.

Madam Justice Francis, who heard the application for leave to appeal, did not grant leave, holding that the application did not meet the tests for leave to appeal, which she set out in paragraphs 13 and 14 as follows:

[13]         In these circumstances, the test is:

1)    whether the proposed appeal raises questions of principle that extend beyond the parameters of the particular case;

2)    whether the questions of principle are of significance to the practice; and

3)    whether the proposed grounds of appeal are arguable.

Singh v. Singh, 2025 BCCA 309 at paras. 23–25.

[14]         Given the limited scope of appellate review of cost orders, leave will generally not be granted unless a question of principle is involved: Yung v. Jade Flower Investments Ltd., 2012 BCCA 168 at paras. 18–20 (Chambers). This Court will not interfere with a trial judge’s exercise of discretion on the issue of costs “unless persuaded that the trial judge misdirected him or herself on a matter of legal principle, or that the trial judge’s decision is so clearly wrong as to amount to an injustice”: Seminoff v. Seminoff, 2007 BCCA 403 at para. 2 (Chambers).

Ms. Rasner argued that the principle involved was “whether a judge is prohibited from ordering costs against an executor in their personal capacity, absent special circumstances, on the basis that an executor is, if not named personally as a party to the litigation, a non-party.” (Paragraph 15)

Justice Francis rejected this argument on the basis that Ms. Rasner was a party, even though Ms. Rasner was named in her capacity as executor. She wrote,

[16]         With respect, I find the applicant’s statement of principle to be premised on a misunderstanding of the nature of an estate. Trusts and estates are not juridical persons capable of suing and being sued. A trust is a type of relationship, namely, the fiduciary relationship that exists between trustee and beneficiary. When a personal representative commences litigation on behalf of an estate, they are not asserting a separate legal personhood. The often-used analogy is that they are the same person, wearing a different hat. Because the executor who commences a lawsuit in their capacity as executor is not a different legal person than the executor in their personal capacity, they are not a non-party in the latter capacity.