Can I Contest a Will in British Columbia? Your Main Options

Finding out that a will leaves you less than you expected, or nothing at all, is hard. Many people ask whether the will can simply be undone. In British Columbia the answer depends on who you are and why you are unhappy with it.

This article explains the two main routes for contesting a will, how a notice of dispute fits in, and the time limits you need to keep in mind. It is general information, not advice on your own situation.

This article covers the law of British Columbia.

Two different ways to contest a will

People use the phrase contesting a will for two quite different things. One is asking the court to change what the will gives you because it is unfair to a close family member. The other is arguing that the will should not count at all because something went wrong when it was made.

Route one: a wills variation claim

If a will-maker dies leaving a will that, in the court's opinion, does not make adequate provision for the proper maintenance and support of the spouse or children, the court may order the provision it thinks adequate, just and equitable out of the estate. Only the will-maker's spouse or children can bring this claim. Two people are spouses if they were married to each other, or had lived together in a marriage-like relationship for at least 2 years, and this is generally judged as of the date of death. A former common-law partner whose relationship ended before the death is not a spouse who can claim. Married people also stop being spouses for this purpose when an event such as separation occurs, unless within one year they resume living together mainly to reconcile, for one or more periods totalling at least 90 days.

The claim is written around a will. On its face it is a remedy against a will, not against a death without a will. The claim must be 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 then be served on the executor no later than 30 days after that 180-day period ends, unless the court extends the time for service. If the will-maker has minor children, or a spouse or child of the will-maker is mentally incapable, the pleading must also be served on the Public Guardian and Trustee, or the claim will not be heard. A claim about a Nisg̱a'a citizen or a treaty first nation member will not be heard unless the pleading is served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

Route two: arguing the will is not valid

A validity challenge says the document should not be treated as a proper will. The grounds in the Wills, Estates and Succession Act (WESA) include the following.

• Capacity and age: a person must be 16 or older and mentally capable to make a will, and a will made without mental capacity can be challenged as invalid.
• Formalities: a will must be in writing and signed at its end by the will-maker, or the signature acknowledged, in front of two or more witnesses present at the same time, and then signed by two or more of those witnesses in the will-maker's presence.
• Undue influence: if the person claiming undue influence shows the other person was in a position where the potential for dependence or domination was present, the party defending the will or gift must prove that no undue influence was exercised.

There is an exception on formalities. The court may order that a record or document, including electronic data, is fully effective as a will even though it does not comply with the Act.

Pausing probate while you decide

If you want to stop a grant from being issued while a dispute is sorted out, you may be able to file a notice of dispute. A person who is or must be given notice of the application, or who claims an interest under a prior or later will, may file one. It must be filed before the earlier of the issue of an authorization or the estate grant. It uses Form P29 and must give an address for service.

While it is in effect, the registrar must not issue an estate grant. It ends after one year, at the end of any renewal period, if you withdraw it, if the will is proved in solemn form, or if the court orders it removed. Any interested person can apply to have it removed, and the court may order removal if the filing is not in the best interests of the estate.

What to do next

• Work out whether you are a spouse or child of the will-maker, because that decides whether a wills variation claim is open to you.
• Note the date any grant was issued, since the 180-day clock runs from then.
• Search Court Services Online for probate and caveat/dispute cases using the deceased's name to see whether a file or dispute already exists.
• Gather the will, any earlier wills, and notes about the will-maker's health and circumstances when it was signed.
• Speak with a lawyer early, because the deadlines are short and the right route depends on your facts.

Frequently asked questions