A recent decision from the British Columbia Court of Appeal serves as an important reminder that before starting litigation, personal representatives must consider not only whether the claim can be brought, but whether bringing it is truly in the best interests of the estate. Failing to do so may expose them to personal liability for costs if the claim is unsuccessful.

In Rasner v Berger, 2026 BCCA 166, the Court of Appeal refused leave to appeal a costs order requiring an executor to personally pay the successful defendant’s costs after an unsuccessful resulting trust claim. While the underlying dispute concerned ownership of a Vancouver condominium, the more important lesson for executors and professional fiduciaries is that courts may look beyond the title of “executor” and examine who truly benefits from the litigation. When a claim is pursued primarily for the executor’s own benefit, the executor may face personal costs consequences.

Litigation decisions made as executor can still have personal consequences

Many executors assume that if they commence litigation in their representative capacity, any costs consequences belong to the estate. Rasner v. Berger demonstrates that the analysis is not that simple.

The underlying litigation concerned a Vancouver condominium that the executor alleged was held on a resulting trust for the estate. Following a 5-day trial, the claim was dismissed after the Court found that the deceased intended the beneficiary to enjoy the use and benefit of the property during the beneficiary’s lifetime and to receive it by right of survivorship on her death. The more significant aspect of the decision for executors, however, was the subsequent costs ruling.

The trial judge concluded that the litigation was not truly being pursued for the benefit of the estate generally. Rather, if successful, the claim would have predominantly benefited the executor herself as one of the remaining beneficiaries. On that basis, the Court ordered her to personally pay the successful party’s costs.

Courts will look at who really stands to benefit

The decision highlights an important practical reality for executors: courts are often less concerned with the capacity in which a lawsuit is commenced than with the substance of the dispute.

By the time litigation was started, the estate had largely been administered and distributed. The trial judge found that there were effectively no estate assets available to satisfy an adverse costs award and that the executor was the person most likely to benefit if the claim succeeded. These facts weighed heavily in favour of a personal costs award.

For personal representatives, the lesson is clear. Before commencing litigation, it is worth asking:

  • Is the claim truly advancing the interests of the estate?
  • Will all beneficiaries benefit if the claim succeeds?
  • Is the litigation primarily advancing the interests of one beneficiary, including the executor?

The more closely a claim resembles a beneficiary dispute rather than an estate administration issue, the greater the risk that an executor may be exposed to personal costs consequences.

Wearing the “executor hat” is not a complete shield

One of the executor’s principal arguments on appeal was that she had only participated in the litigation in her capacity as executor and was therefore effectively a non-party in her personal capacity. She argued that personal costs should only be available under the exceptional test applicable to non-party costs awards.

The Court of Appeal rejected that argument.

The Court emphasized that an estate is not a separate legal person. An executor who commences litigation on behalf of an estate is still the same individual, merely acting in a different capacity. As Justice Francis noted, executors are often described as wearing a different “hat,” but they are not transformed into a different legal person. As a result, the executor could not avoid personal exposure to costs simply because the claim was brought in her representative capacity.

This aspect of the decision may be particularly important for professional executors and trust companies. While acting in a fiduciary capacity provides authority to bring claims on behalf of an estate, it does not eliminate the possibility of personal liability where circumstances justify it.

A reminder to carefully evaluate estate claims before suing

The Court of Appeal also confirmed that personal costs awards against executors are not limited to cases involving fraud or bad faith. Rather, courts retain a broad discretion to determine who should fairly bear the costs of litigation.

That does not mean executors should avoid litigation altogether. Executors are often required to take steps to recover estate assets, defend estate interests, or seek the court’s direction in uncertain circumstances.

However, Rasner v. Berger illustrates the importance of ensuring that:

  • there is a strong evidentiary foundation for the proposed claim;
  • the claim is genuinely being advanced for the benefit of the estate;
  • the potential costs consequences have been considered;
  • sufficient estate assets remain available to satisfy possible liabilities; and
  • the executor has carefully considered whether they may be perceived as advancing their own personal interests.

Key takeaways for executors and professional fiduciaries

Executors who choose to litigate must remember that they owe duties to all beneficiaries and must act in the interests of the estate as a whole. Where litigation is commenced mainly for an executor’s own benefit, especially after estate assets have already been distributed, a court may conclude that the executor rather than the estate should bear the financial consequences of an unsuccessful claim. Rasner v. Berger ultimately serves as a reminder that personal representatives who pursue litigation without a clear estate purpose may be exposed to personal liability for costs, particularly where the court concludes that the litigation primarily advances the representative’s own interests rather than those of the estate.

If you have questions about estate litigation or executor obligations, please contact a lawyer from our Private Client Services group.