Incapacity In British Columbia: Are Committees Obligated To Maximize An Incapable Person’s Estate?

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Understanding Estate Obligations for Committees in B.C. Incapacity Cases

When someone becomes incapable of managing their own affairs, a court in British Columbia may appoint a committee under the Patients Property Act, RSBC 1996, c 349. This fiduciary role is often misunderstood — particularly when it is compared to the duties of executors or trustees who have Power of Attorney.

While a trustee or executor is expected to manage or distribute an estate with a focus on maximizing value for beneficiaries, a committee operates under a very different standard. Their responsibility is to the incapable person alone, and any management of the patient’s estate is generally undertaken only insofar as it benefits the patient. The committee’s relationship to the estate is therefore indirect: it exists only through the lens of the patient’s best interests, not out of any obligation to grow the estate for heirs.

Section 18: A Duty to the Patient First and Foremost

Section 18(1) of the Patients Property Act says:

“A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.”

At first glance, this provision might suggest a balancing act between the interests of the patient and their broader family. But British Columbia courts have consistently interpreted the language of section 18 in a way that centres the incapable person, not their heirs. The reference to “the patient’s family” does not impose a duty to future beneficiaries, nor does it require the committee to preserve or enhance the value of the estate for eventual distribution.

Instead, the “family” language has been treated as a recognition that some decisions may have collateral benefits for family members — such as supporting a dependent child or spouse — but only when those benefits align with the patient’s own needs and welfare. Committees are fiduciaries to the patient, not fiduciaries of the estate, and not agents of the family.

This interpretation was affirmed in British Columbia (Public Trustee) v. Bradley Estate, 2000 BCCA 78. In that case, the Court of Appeal rejected a proposal to restructure a patient’s estate for tax purposes in a way that would benefit his children after death. Even though the plan would have saved on U.S. estate taxes and arguably preserved more wealth, it was found to be incompatible with the committee’s duty because it would materially reduce the estate during the patient’s lifetime without delivering any personal benefit to him. The court held that committees may only reduce the estate if doing so genuinely serves the patient’s welfare. There is no authority to take financial risks or restructure the estate solely to favour eventual beneficiaries (paras 15–20).

This principle was reaffirmed — and clarified — in Uhlving Estate v. Public Guardian and Trustee, 2024 BCCA 397. There, the Public Guardian and Trustee declined to pursue a WESA wills variation claim on behalf of an incapable widow, even though a successful claim would have increased the size of her estate for her adult children. The court upheld this decision, emphasizing that the committee’s statutory duty does not authorize litigation that exposes the patient’s assets to risk unless the litigation is directly linked to improving the patient’s own financial position or care. Justice Grauer wrote:

“A statute aimed at the protection of vulnerable persons… cannot authorize a committee to act in a way that would jeopardize the patient’s continued care and maintenance when the only consequence would be to materially benefit a legally unrelated third party.” (Uhlving, at para 54)

While a committee must be mindful of the family’s needs in situations where the patient’s support obligations persist — for example, to a dependent spouse or child — these are exceptions grounded in the patient’s own obligations and well-being. The core principle remains: the estate is a resource for the patient, not an inheritance to be grown for others.

By contrast, an executor or trustee is specifically tasked with managing and preserving an estate for the benefit of named beneficiaries or classes of heirs. Their role includes identifying tax efficiencies, recovering debts owed to the estate, and maximizing value for distribution. A committee, however, cannot simply do what’s best for the estate. They must ask: does this decision benefit the patient, directly and meaningfully, during their lifetime? If the answer is no, the action should likely not be taken — even if the patient’s family might stand to gain.

What If There’s Truly No Impact on the Patient?

The core legal position is this: committees are not neutral stewards of the estate. Their powers are exercised through the prism of the patient’s benefit — not for the estate’s general preservation, and certainly not to increase the share left to others.

So, even where a decision is costless or low-risk (e.g., pursuing a simple claim, amending a will, or changing asset structure), courts have been reluctant to allow committees to act purely to benefit others, unless:

  • The patient gains some tangible or intangible benefit (e.g., peace of mind, maintaining long-standing family expectations, or avoiding conflict);
  • The action aligns with the patient’s known wishes, expressed prior to incapacity;
  • There is no financial, reputational, or practical risk to the patient or their care; and
  • The action is objectively reasonable under the standard of a “prudent person of business.”

But even under those circumstances, caution prevails. If there is a chance the decision could be interpreted as self-dealing or as exceeding the scope of authority, courts will tend to side with inaction. That is, committees should be risk-averse, even inactionist, when the benefit is external and the internal justification is weak.

Conclusion: Duty First, Legacy Second

Committees are not custodians of inheritance. Their duty is not to secure windfalls for beneficiaries, but to make careful, prudent decisions that protect the welfare of the patient during their lifetime. While trustees and executors look to the future — preserving and maximizing assets for others — committees look primarily to the present, with one question in mind: What serves the best interests of the person I am appointed to protect?

If you have been appointed as a committee, or are navigating questions about estate planning and incapacity, our team can help you understand your legal obligations and protect both your loved one’s interests and your own.

Contact Heath Law today. or read more of our blog articles about Trusts and Estate Law.

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What if there are issues with the Will or concerns about its validity?

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Whereas some issues with a Will can be rectified, others will result in the Will being held as invalid.

Issues concerning undue influence or lack of capacity can have the effect of invalidating a Will. A Will may also be invalid if it does not comply with s.37 of the British Columbia Wills Estates and Succession Act (“WESA”) which states that the Will must be:

(a) In writing,

(b) Signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) Signed by 2 or more of the witnesses in the presence of the Will-maker.

Further, a Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail unless they can be cured under certain provisions in WESA. Other issues with a Will, such as formality requirements, may be able to be fixed through provisions of WESA.

Under section 58 of WESA, if a Will does not satisfy the formal requirement, the court has discretion to cure the formal deficiencies. This generally involves ascertaining the Will-maker’s testamentary intentions.

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How should I communicate with beneficiaries and potential heirs of the estate?

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Executors should initiate conversations promptly after the passing of the deceased, providing clear information about the probate process, including steps, timelines, potential delays, and the roles involved.

Written communication, such as formal letters or emails, not only ensures that details are documented but also provides beneficiaries with a reference point. An executor is obligated to keep beneficiaries “reasonably” informed throughout the estate administration process and to answer inquiries made by beneficiaries in a timely manner. What is reasonable depends on the circumstances and estate administration can take months or years to complete.

If the executor is not communicating with beneficiaries and delay is becoming an issue, a court application can be brought to compel the executor to complete the administration of the estate and distribute the estate’s assets.

Beneficiaries should be provided with enough information to ensure the estate administration process is progressing and that the estate is being administered in accordance with the terms of the Will. At the start of the process, the executor must provide notice to each person with an interest in the estate. This notice should indicate what the beneficiary is entitled to pursuant to the terms of the Will.

Delivery may be by personal delivery, ordinary mail, email, or other electronic means to the address provided by the person for that purpose. There is no requirement to prove receipt of a notice that has been mailed.

However, before mailing, the executor must make reasonable efforts to verify that the address is current, even when the Will-maker has long been out of touch, and if it is not, make an effort to trace the current address.

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What documents do I need to gather and file in relation to the probate process?

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The documents required for a typical application for probate are:

1. A submission for an estate grant;

2. An affidavit of the applicant for grant of probate from the applicant;

3. If there are two or more applicants, an affidavit in support of an application for an estate grant from each applicant;

4. Two copies of a certificate of Wills notice search;

5. Any affidavit or material required to deal with issues relating to the Will, including proof of due execution, the effect of interlineations or alterations, or electronic Wills;

6. One or more affidavits of delivery that, collectively, confirm that notice was delivered to all persons to whom notice must be given;

7. An affidavit of assets and liabilities from the applicant;

8. Two exact copies of the Will or a copy of the Will being submitted;

9. The written comments of the Public Guardian and Trustee if notice of the application must be given to the Public Guardian and Trustee on behalf of a minor or a mentally incompetent person;

10. A draft of the estate grant or authorization to obtain estate information (although drafts may not be required at some registries such as Vancouver which will prepare these documents internally);

11. A lawyer’s trust cheque, certified cheque, or bank draft (the court registry will not accept personal cheques) for the initial probate filing fee in the amount of $200, to be submitted with the application (note that no filing fee is payable if the estate does not exceed $25,000 in value);

12. A lawyer’s trust cheque, certified cheque, or bank draft for the balance of the probate fee, is to be submitted when the probate registry has advised that the application has been approved and confirmed the amount of the fee.

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Are there any potential legal disputes or claims that I should be prepared for?

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As an executor, there are many potential legal disputes or claims that may arise. One common challenge lies in disputes concerning the validity of the Will, where allegations of undue influence or lack of mental capacity can lead to litigation. Other issues with the Will can include problems with formalities, as well as unclear provisions in the Will.

In BC, an issue that can arise is Wills variation claims by the spouse or children of the deceased. The definition of “child” in this context includes adult children.

Under section 60 of the British Columbia Wills Estates and Succession Act, a spouse or child may commence a proceeding to vary a Will that does not adequately provide for the spouse or child’s proper maintenance and support.

In this situation, the court may order the provision be made that it thinks is “adequate, just and equitable” in the circumstances. If a Wills variation proceeding is commenced, a distribution of the estate may only occur with the consent of the court.

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What is probate and is it necessary?

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Probate is the proof of the deceased’s Will. In granting probate, the BC Supreme Court will certify that a document proffered as the deceased’s last Will is what it is purported to be.

A grant of probate will become necessary if the validity of the Will is called into question. If a grant of probate is necessary, the next question is whether the executor will seek a grant of probate in common form or a grant of probate in solemn form. Probate in common form is the procedure by which a Will is approved by the court as the last Will of a testator.

Probate in solemn form pronounces for the validity of the will and also confirms the appointment of the person named as executor in the Will. Agencies and financial institutions that hold assets in an estate generally require that a Will be probated before allowing an executor to access the assets.

Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the deceased. In British Columbia, before applying for the probate grant, the executor needs to send a notice of their intention to apply for the grant to certain people, including every beneficiary named in the Will.

In order to obtain a grant of probate of a Will, the Will must be proved to the court on the basis of affidavit evidence filed with the court by the executor.

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How do I handle debts and liabilities of the deceased person, including taxes?

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One of the duties of the executor is to pay any debts and liabilities of the estate, which includes paying taxes. As executor, you have a duty to pay all legitimate debts of the estate before making a distribution to beneficiaries.

According to section 142(2) of the British Columbia Wills Estates and Succession Act (“WESA”) the executor must account to the creditors as well as beneficiaries. The beneficiaries will receive the residue after these debts and taxes have been paid. According to section 159(2) of the Income Tax Act, an executor must also obtain a clearance certificate from the Minister before making a distribution.

If the assets are not sufficient to pay all the debts and the gifts under the Will, the assets must be liquidated to pay the debts in an order specified by WESA. As a note, benefit plans that have designated beneficiaries pay benefits directly to those beneficiaries, and creditors of the estate have no access to payments made from benefit plans: WESA, s. 95.

An executor is not liable for the debts of the estate, but if the executor distributes assets before the debts are paid, then he or she could be held accountable for the amount they distributed. Also, according to WESA, s. 53(3), if the Will leaves a gift to a creditor, that gift is not necessarily a payment by the Will-maker on the debt, unless the Will clearly says that it is. In other words, a creditor might take a gift and still pursue a debt.

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What steps should I take to ensure the proper distribution of assets according to the Will or provincial law?

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The executor must follow the instructions in the Will and distribute the assets accordingly. The British Columbia Wills, Estates and Succession Act imposes a 210-day waiting period during which an executor must not distribute the estate without the beneficiaries’ consent or a court order. This waiting period is to allow beneficiaries who may have a claim for Will variation to file their claim. Further, an executor should ensure that all debts and taxes are paid before making a distribution to the beneficiaries of the Will.

The distribution of an estate may depend on the type of gift set out in the Will. Gifts may be conditional, which means that they depend upon a particular event taking place or a particular situation existing. The Will-maker may also make specific gifts, giving particular assets to named individuals or broadly dividing the estate assets among named groups.

As a note, certain items are not passed through a Will, such as life insurance, property held in joint tenancy, or funds in an RRSP which a beneficiary was named. When making final distributions to a beneficiary, he executor should obtain approval of their executor fees and a Release from beneficiaries on payment of the bequest.

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How do I locate beneficiaries?

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The deceased’s Will is often the primary source of information about beneficiaries. Personal records such as address books and digital contacts offer potential leads, as well as online searches and social media platforms.

Financial institutions can also provide clues, as beneficiaries are often linked to accounts and investments. Furthermore, the beneficiaries’ family and friends may possess valuable insights into the whereabouts of the beneficiary. Other practical steps include checking their last known address and talking to their neighbours, checking with their last known employer, and asking at places where they are known to have contacts (for example, clubs and social organizations).

If, after taking these steps, you still can’t find the beneficiary, you can hire someone to locate a person’s whereabouts. This is known as a trace, and there are several companies in BC that offer tracing services. Whichever company you choose to work with, they will want as much information about the beneficiary as you can provide. However, if you are still unsuccessful, you may need to apply to court for an order either dispensing with notice or notifying the missing beneficiary in a different way such

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How do I locate and access the deceased person’s assets and accounts?

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Locating and accessing the deceased person’s assets starts with gathering documents such as the Will and financial records.

Sometimes, all of these assets and where they can be found will be listed in the Will. However, many Wills simply reveal how the value of the estate will be divided, or only list a few selected items that the deceased wanted specific people to have.

Some common sources of information for finding the assets include the deceased’s lawyer or accountant, a list prepared by the deceased, and recent tax returns. An important step in accessing the deceased’s accounts involves notifying financial institutions and service providers of the death, accompanied by necessary documents like the death certificate and a grant of probate from the court.

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