Can Family Members Agree to Change a Will Without Court in BC?

A will leaves one child less than the others, or leaves a spouse with less than they expected. The family talks it over and everyone seems to agree on a fairer split. The natural question is whether you can simply do that, without a court case.

The answer is sometimes yes, but there are limits. Who is involved, whether anyone is a minor or mentally incapable, and what the deadlines are all matter. This article explains how agreement fits with British Columbia's wills variation rules.

This article covers the law of British Columbia.

Only the court can vary a will

Under section 60 of the Wills, Estates and Succession Act (WESA), the court may order that adequate, just and equitable provision be made out of an estate if a will does not adequately provide for the proper maintenance and support of the will-maker's spouse or children. The Public Guardian and Trustee says that only the court can vary a will.

That does not mean the family is locked into the exact wording. The Public Guardian and Trustee also notes that capable adults may sometimes agree among themselves to distribute an estate differently. In plain terms, the will itself is not rewritten, but adults who are all capable and all affected may be able to settle how the estate is shared.

Who can bring a claim matters too. Only the will-maker's spouse or children can bring a wills variation claim under section 60. A spouse means someone who was married to the will-maker or who lived with them in a marriage-like relationship for at least 2 years. Separated spouses, and former common-law partners whose relationship ended before the death, generally do not count.

When agreement is not possible for some people

A settlement only works if everyone who needs to agree is able to. Two groups need special care.

For a minor, the Public Guardian and Trustee may comment to the court on a proposed settlement, and may start a claim and instruct counsel for the child. For an incapable adult, the Public Guardian and Trustee must be served with the notice of civil claim.

How consent fits with the 210-day hold

A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. The hold exists to protect the 180-day window for wills variation claims.

There is an exception. The estate may be distributed within the 210 days if all beneficiaries with an interest in the estate, and all persons who may bring a wills variation proceeding, consent. Whether this exception is available in your family's case depends on who the possible claimants are and the facts of the estate. A lawyer can tell you how that applies to your situation.

Why the deadlines still matter during talks

Negotiations do not pause the legal time limits. A wills variation claim must not be heard unless the proceeding is started within 180 days from the date the grant of probate or administration is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that 180-day period expires, unless the court extends the time for service.

Where the will-maker has minor children, or a spouse or child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee, or the claim will not be heard. For a will-maker who was a Nisg̱a'a citizen or a treaty first nation member, the pleading must be served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

There is some protection built in. A claim brought by one person may be treated as brought for all persons who might apply, and for limitation purposes it is conclusively deemed to be brought on behalf of all of them. Even so, relying on that while talks drag on is risky, so many families get advice on whether to file to protect their position.

What to do next

• Find the date the grant of probate or administration was issued and count 180 days from it.
• List everyone who may be affected: spouse, children, and beneficiaries named in the will.
• Note whether any child is under 19 or any family member is mentally incapable.
• Do not distribute or accept early distribution until you know who must consent.
• Keep any proposed arrangement in writing and talk to a lawyer before signing.
• Ask a lawyer whether filing a claim to protect the deadline makes sense while talks continue.

A short conversation with a lawyer early on can clarify whether a family agreement is realistic, or whether a court application is the safer route.

Frequently asked questions