Can a British Columbia Executor Distribute During a Wills Variation Claim?

If you are an executor, beneficiaries may be asking when they will be paid. If you are a beneficiary, you may be wondering why nothing has arrived. When someone is considering or has filed a wills variation claim, the timing of any distribution becomes a serious question.

This article explains the key periods under the Wills, Estates and Succession Act in British Columbia, the two ways the hold can be lifted, and why a lawyer should be consulted before assets leave the estate.

This article covers the law of British Columbia.

The 210-day rule

Under WESA section 155(1), a personal representative must not distribute the estate within 210 days after the representation grant is issued, unless the court orders otherwise. The hold exists to protect the 180-day window for wills variation claims.

That 180-day window is found in section 61. A claim must be started within 180 days from the date the grant, whether probate or administration, is issued in British Columbia. The claim is then served on the executor within 30 days after the 180-day period expires, unless the court extends time for service.

When early distribution is allowed

Besides a court order, there is a consent 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.

In practice that raises difficult questions. Only a spouse or child can bring a claim, and spouse status can depend on separation, reconciliation or the end of a common-law relationship. A child under 19 cannot consent to a settlement of an estate claim, and no one can consent on their behalf. Whether the same limits apply to consent to early distribution is a point to confirm with a lawyer. Where an incapable adult is involved, the Public Guardian and Trustee must be served in a claim.

What a court can do with a claim

A wills variation claim asks the court to decide whether the will makes adequate provision for the proper maintenance and support of the will-maker's spouse or children. If it does not, the court may order that the provision it thinks adequate, just and equitable in the circumstances be made out of the estate. The court may order a lump sum, periodic or other payments, a transfer of property, or the creation of a trust.

The court may accept evidence about the will-maker's reasons for making or not making a gift. It may also refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief, and may attach conditions to an order. For that reason, an executor cannot safely assume how a claim will turn out.

• If 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.
• Costs of a proceeding must be awarded to the successful party unless the court orders otherwise.
• If anything is done or omitted improperly or unnecessarily by or for a party, the court may make a costs order against that party.

What changes once a claim is filed

A claim brought by one person may be treated as brought for all persons who might apply, and for limitation purposes it is deemed to be brought on behalf of all of them. So a single filing can affect the whole estate.

The claimant may register a certificate of pending litigation against land affected by the claim within 10 days after the pleading is issued. That can make it difficult to sell or transfer property.

The court may also suspend administration of the estate, in whole or in part, and may exempt part of the estate from a wills variation order. If the court orders payments, they are borne rateably by the will-maker's estate unless it decides otherwise. An executor who has already distributed assets may have trouble funding an order, and the personal consequences for an executor depend on the facts, so legal advice is important.

What to do next

• Executors: record the date the grant was issued and calendar 180 and 210 days.
• Identify every spouse and child, including minors and incapable adults.
• Do not make final distributions on an informal promise; get written consents that cover every person who may claim.
• Beneficiaries: expect delays, and ask the executor for the timeline in writing.

• Confirm the grant date and count both periods.
• List every person who could bring a claim.
• Ask a lawyer whether any interim payment is safe.
• Keep records of what was held back and why.
• If a claim arrives, get advice on responding before moving more assets.

Frequently asked questions