Under WESA leave of the court is required to commence legal proceedings in the name of a specified person and on behalf of the estate of the deceased person and the requirements are set out in S 151 WESA.
Section 151 of WESA states:
Who may sue with leave of court
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.
For leave to be granted under s. 151 of WESA the applicants must meet the requirements summarized in Hoggan v. Silvey, 2022 BCCA 176:
In summary, the factors that are relevant in an application pursuant to s. 151 may vary depending on the nature of the application.
The statutory factors will always apply,
-so the petitioner must have standing as a specified person,
-must have made reasonable efforts to cause the personal representative to commence or defend the action,
-must have given the necessary notice, and must be acting in good faith.
-There must be an arguable case, as a meritless case would be neither necessary nor expedient to protect the interests of the estate or the specified person.
However, it will not always be necessary to consider whether the potential relief outweighs the inconvenience to the estate and whether the litigation is in the best interests of the estate.
Rather, as mentioned, s. 151(3)(b) is to be read disjunctively, such that there are four possible ways the standard may be met:
it may be necessary to protect the interests of the estate;
it may be expedient to protect the interests of the estate;
it may be necessary to protect the interests of a specified person;
or it may be expedient to protect the interests of a specified person.
