Rasner v. Berger : When Estate Litigation Can Become An Executor’s Personal Problem

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.