Can a Child Left Out of a Will Make a Claim in British Columbia?

Being left out of a parent's will, or receiving far less than a sibling, can feel like a final judgment. In British Columbia, a will is not always the end of the matter. The law allows certain family members to ask a court to change how an estate is divided.

This article explains the claim, called a wills variation claim, who can bring it, the strict time limit and what to do now. Outcomes depend heavily on the facts, so it is a starting point and not an assessment of your case.

This article covers the law of British Columbia.

What is a wills variation claim?

Under section 60 of the Wills, Estates and Succession Act (WESA), a court may order whatever provision it considers adequate, just and equitable out of the estate for the will-maker's spouse or children if the will does not adequately provide for their proper maintenance and support. The claim asks the court to vary the will, which means changing who gets what.

The statute speaks of spouses and children, and it does not on its face limit that to young children. Whether an adult child can succeed, and how much a court might award, depends on the facts and on how courts apply the section, which is something a lawyer should assess. Being left out does not by itself decide the matter either way.

The time limit is short

A spouse or child must start the proceeding within 180 days from the date the representation grant is issued in BC. A copy of the initiating pleading must also be served on the executor no later than 30 days after the 180-day period ends, unless the court extends the time.

The clock runs from the date of the grant, not from the date of death. That means you need to know whether probate has been applied for and when a grant was issued. If you do not know, finding out should be your first task.

How the claim affects the executor

Except by court order, a personal representative must not distribute the estate within 210 days after the grant is issued. With a will, an early distribution is allowed if all beneficiaries with an interest and all persons who could bring a wills variation claim consent. If you have not agreed, the executor should not rely on that exception for your share.

Even after 210 days, distribution needs court consent if wills variation relief is being sought. If an executor distributes early without setting aside enough to satisfy a wills variation claim for people who cannot be located, the executor is personally liable for resulting loss.

Another point: an executor who makes reasonable efforts to find people entitled to notice of a probate application is protected from liability if they cannot be found, but that protection does not cover claims to recover property or enforce an order under the wills variation division.

Information to gather before you speak to a lawyer

• The date of death and, if you can learn it, the date the grant was issued.
• A copy of the will, if you have one, and any earlier wills you know of.
• Your relationship with the deceased and any financial support you received or needed.
• Your income, assets, health and needs, and those of your dependants.
• A rough list of the estate assets, if known, and the names of the executor and other beneficiaries.

If you are unsure a will exists, anyone can apply to the Vital Statistics Agency for a search for a wills notice once the will-maker has died, by providing the required documents and payment. The result shows only the date the will was signed, where it was kept and when the notice was received, and Vital Statistics does not keep a copy of the will or record what it says.

What to do next

• Find out whether a grant has been issued and note its date, because the 180-day period starts then.
• Write down the date 180 days later and the date 30 days after that.
• Do not wait for family discussions to resolve things before you check the deadline.
• Collect the documents listed above.
• Speak with a lawyer early, because the 180-day time limit runs from the date the grant is issued.

Many families settle these disputes by agreement, but a protective step may be needed first so your rights are not lost. A lawyer can explain the options for your estate.

Frequently asked questions