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Legal Ease
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Category: Canada Law
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Experience:  Lawyer
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I am co-executor to an estate that has already passed probate.

Customer Question

I am co-executor to an estate that has already passed probate. I want to sue one of the beneficiaries in small claims court for missing assets that in my opinion where improperly taken before the death.
The specific issue is POA was used to write a cheque by the individual to themselves while the person was diagnosed with dementia.
Is it possible in British Columbia to do this in small claims, or is this specific for Supreme court? And how would I name myself as the claimant - as an individual or as the estate?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Legal Ease replied 1 year ago.
The estate is the Plaintiff as the money is not owing to you. The estate cannot sue in Small Claims Court as there is an exception for matters affecting Wills and estates and this does.
Customer: replied 1 year ago.
I could not find a specific section of the Small Claims Act that precluded it. In your opinion, is it overridden by WESA? What would the appropriate way forward -- would you approach it as part of passing of the accounts, or as a separate action Notice of Claim in Supreme Court first, then pass the accounts?
Expert:  Legal Ease replied 1 year ago.
Read this government page: http://www.provincialcourt.bc.ca/types-of-cases/small-claims-matters I would suggest that you first send the beneficiary a demand letter demanding that he/she reimburse the estate for these monies and threatening to sue. If that doesn't work you can seek direction from the court to ask if you can simply reduce what the beneficiary is entitled to by that amount. If not you will have to start an action like any lawsuit and the plaintiff is the estate and the defendant this one beneficiary. Passing of accounts will not solve this problem.

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