Werner v McLean Estate is one of the first decisions under WESA to allow an intestate successor beneficiary to commence a court action in the name and on behalf of the personal representative of the estate if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met. This is a new provision to WESA.
The Court utilzed S. 151 to allow the intestate successor to commence action when the acrimony was such between the parties that it met the criteria to allow the court to conclude that it was necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceedings to be brought or defended.
This section as a practical matter will likely be used when a personal representative refuses to carry out his or her duty to as viewed by the beneficiaries or intestate successors.
The application alternatively sought to remove and replace the trustee.
The court in addition to granting the relief un S. 151 WESA also ordered that the estate assets not be disposed or transferred pending resolution of the case.
 Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:
(1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative 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.
(3) The court may grant leave under this section if
(a) the court determines the beneficiary or intestate successor seeking leave
(i) representative to commence or defend the proceeding, has made reasonable efforts to cause the personal
(ii) has given notice of the application for leave to
(A) the personal representative,
(B) any other beneficiaries or intestate successors, and
(C) any additional person the court directs that notice is to be given, and
(iii) is acting in good faith, and
(a) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.
(3) On application by a beneficiary, an intestate successor 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.
Accordingly, the court is empowered to grant leave to an intestate successor to commence proceedings in the name and on behalf of the personal representative if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met.