Plaintiffs failed to add the executor in his personal capacity
The BC Supreme Court has dismissed two applications seeking to hold an executor personally liable for outstanding amounts owed by an estate.
Epic Restoration Services Inc. and The Dominion of Canada General Insurance Company, operating as Travelers Canada, filed the applications against Rudyard Kippling Fuller, the executor of Desmond Fuller's estate.
Epic and Travelers sought orders to make Rudyard personally liable for amounts the estate was ordered to pay them following a trial. The plaintiffs argued that Rudyard, as the executor, breached his fiduciary duty by transferring a significant estate asset, a property on Sprice Avenue, into his name. They claimed this action prevented the estate from satisfying the judgments.
Rudyard opposed the applications on several procedural and substantive grounds. Procedurally, he argued that the plaintiffs lacked standing as he was not a defendant in his personal capacity in the proceedings. Additionally, he contended that the applications constituted a collateral attack on the court’s orders and were barred by res judicata. Substantively, Rudyard maintained that s. 149(1) of the Wills, Estates and Succession Act (WESA) did not apply to this case, and he was discharged from personal liability once the estate administration was complete.
The court examined the procedural validity of the applications and found that the plaintiffs failed to add Rudyard as a party in his personal capacity to seek personal liability. It emphasized that s. 149(1) of WESA provides the legal basis for such relief but does not absolve the need to name the executor personally in the proceedings. The court noted that the plaintiffs had two potential mechanisms to achieve this: either by adding Rudyard in his personal capacity to the existing action and amending the notice of civil claim or by commencing a separate proceeding against Rudyard personally.
The applications were ultimately dismissed on procedural grounds, but the Supreme Court allowed for the possibility of the plaintiffs pursuing their claims through appropriate channels. The court underscored that while the substantive arguments presented by Epic were compelling, they needed to be properly addressed in a new proceeding if the plaintiffs chose to pursue it.
