What Does It Cost to Contest a Will in British Columbia?

People weighing a challenge to a will often ask what it will cost. A fair answer is that it depends on how the dispute unfolds, and nobody can responsibly give a single figure at the start.

This article explains the rules that shape costs in a British Columbia estate dispute and the steps that tend to add expense, so you can ask better questions when you speak with a lawyer.

This article covers the law of British Columbia.

Who pays the costs when a case ends

Under Rule 14-1(9) of the Supreme Court Civil Rules, the costs of a proceeding must be awarded to the successful party unless the court orders otherwise. Costs are normally assessed as party and party costs under Appendix B, but the court may order special costs.

In plain terms, losing can mean paying part of the other side's costs on top of your own lawyer's account. Estate disputes can lead the court to depart from the usual rule, so the outcome on costs is not predictable at the outset.

• If something is done or omitted improperly or unnecessarily by or on behalf of a party, the court may make a costs order against that party.
• A plaintiff who recovers an amount within the Provincial Court's small claims jurisdiction is not entitled to costs, other than disbursements, unless the court finds sufficient reason to bring the proceeding in the Supreme Court.

Steps that drive the cost

Expense generally follows the number of steps and how contested each one is. Common steps in a British Columbia estate dispute include the following.

A dispute that settles early generally involves fewer steps than one that goes to trial, though each case differs.

Who can claim and the deadlines that apply

Cost also depends on whether a claim can go ahead at all. Only the will-maker's spouse or children can bring a wills variation claim under section 60 of the Wills, Estates and Succession Act. Two people are spouses if they were married to each other, or if they had lived with each other in a marriage-like relationship for at least 2 years. Married persons stop being spouses for these purposes when an event such as separation gives rise to an interest in family property under the Family Law Act, and a former common-law partner whose relationship ended before the death is not a spouse who can claim. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for periods totalling at least 90 days.

A wills variation claim must be started within 180 days from the date the grant is issued in British Columbia. The pleading must be served on the executor no later than 30 days after that period expires, unless the court extends the time for service. A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise, although distribution within that time is possible if all beneficiaries and all persons who may bring a wills variation proceeding consent.

Factors that can add to the bill

• Extra parties: if minor children or a mentally incapable spouse or child are involved, the Public Guardian and Trustee must also be served, and may appear and receive any costs the court orders.
• Settlement limits: a person under 19 cannot consent to a settlement, and no one can consent on their behalf, so the Public Guardian and Trustee may comment on a proposed settlement.
• Land: a certificate of pending litigation may be registered within 10 days after a wills variation pleading is issued.
• Interim steps: the court may suspend administration of the estate and attach terms.
• Late applications: renewing a lapsed notice of dispute requires good reasons for the delay, substantial prejudice to you and no substantial prejudice to others.

Lawyers' hourly rates, expert evidence and trial length also matter, and your lawyer can explain how these apply to your case.

Ways to keep costs in check

The Public Guardian and Trustee says only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently. Whether an agreement is possible in your situation depends on the facts, so it is worth confirming with a lawyer. Even when talks are underway, deadlines keep running, so protect your position first.

If the other side's notice of dispute is not in the best interests of the estate, the court may order its removal.

What to do next

• Search the deceased's name on Court Services Online to see whether a probate or dispute file exists.
• Diarize the 180-day limit from the date the grant is issued.
• Ask any lawyer you consult for a written outline of stages, likely steps and how costs are billed.
• Ask how costs awards could work for and against you under the rules above.
• Gather the will, any earlier wills, and records of your relationship with the deceased.

Frequently asked questions