Does One Family Member's Wills Variation Claim Protect the Others in BC?

A parent has died, the will leaves you little or nothing, and 180 days have passed since probate was issued. Then you learn that your brother or your stepmother's family has already started a wills variation claim. You may wonder whether that claim keeps your own alive.

The short answer is that British Columbia law has a specific rule on this, but it does not do everything people hope. This article explains what the rule says, who can claim at all, the deadlines and notices that apply, and why each person still has to make their own case.

This article covers the law of British Columbia.

What section 61(4) says

Under the Wills, Estates and Succession Act (WESA), a wills variation proceeding brought by one person may be treated as brought for all persons who might apply. For limitation purposes, it is conclusively deemed to be brought on behalf of all of them.

In plain words, the law does not expect every eligible family member to file separately just to beat the time limit. How far this rule reaches in a particular family situation depends on the facts, so it is worth confirming with a lawyer before you rely on it.

Who can claim in the first place

Only the will-maker's spouse or children can bring a wills variation claim. The section names no other relatives, beneficiaries or interested persons. The claim is about a will that does not make adequate provision for the proper maintenance and support of the spouse or children.

Two people are spouses if they were married, or if they had lived together in a marriage-like relationship for at least 2 years. Status is generally judged at the date of death. There are exceptions:

• Separated married spouses stop being spouses for WESA purposes when an event such as separation gives rise to an interest in family property under the Family Law Act.
• Unmarried partners stop counting as spouses once one or both end the relationship, so a former common-law partner whose relationship ended before the death cannot claim as a spouse.
• 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 parent-child relationship created by adoption is determined under the Adoption Act.

If you are not a spouse or child under these rules, another person's claim is unlikely to give you standing of your own.

The deadlines and notices that still apply

A wills variation claim must be started within 180 days from the date the probate or administration grant 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.

Because these steps are conditions for the claim being heard, missing them can be serious. Whether a particular deadline can be extended is a question for a lawyer.

How the estate stays in place

A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. This hold protects the 180-day window. The estate may also be distributed within that period if all beneficiaries with an interest in the estate and all persons who may bring a wills variation proceeding consent.

Once a claim is underway, the court may suspend administration of the estate in whole or in part, and may exempt part of the estate from an order, on terms it considers appropriate.

The claimant may also register a certificate of pending litigation against land affected by the claim within 10 days after the initiating pleading is issued.

Each person still has to make their own case

Being covered by another person's claim for time-limit purposes does not mean you will receive the same result. The adequate, just and equitable standard is measured by legal obligations and moral obligations. Legal obligations generally take precedence over purely moral claims, and some moral claims are stronger than others.

The court may also refuse an order to a person whose character or conduct disentitles them to relief, and may attach conditions to an order. The court can accept evidence about the will-maker's reasons for the gifts they made or did not make. Your own circumstances, relationship and needs will matter.

What to do next

• Find the date the grant was issued in British Columbia and count 180 days from it.
• Ask the executor or other family members whether anyone has started a claim, and check whether a probate file or dispute exists; Court Services Online lets you search probate and caveat/dispute cases by the deceased's name.
• Confirm whether you qualify as a spouse or child under WESA.
• Gather the will, financial records and evidence of your relationship and needs.
• Speak with a lawyer promptly about whether to file your own claim rather than relying on someone else's.

Frequently asked questions