How Do You Challenge a Will in British Columbia Supreme Court?

If you believe a will is invalid, the path through the British Columbia Supreme Court has several stages. Some happen before a grant of probate is issued, and some after. Timing can make a real difference.

This article gives a general outline from the notice of dispute onward. It does not replace advice. Court rules and forms change, so confirm current requirements with a lawyer or the court registry.

This article covers the law of British Columbia.

Grounds for a challenge

Probate checks that a will was made without fraud or undue influence, and a will that passes these checks is described as valid. A challenge usually rests on one or more of these grounds:

• Lack of capacity. A person must be mentally capable to make a will, and the test comes from case law applied with WESA s. 36.
• Undue influence. Under WESA s. 52, the challenger must first show that the other person was in a position of potential dependence or domination over the will-maker and that this position was used to influence the will. Only then does the onus move to the defender to prove that no undue influence was exercised.
• Lack of knowledge and approval, where suspicious circumstances may rebut the presumption of capacity and of knowledge and approval.
• Signing defects. A will must meet the writing, signature and witness requirements in s. 37(1).

These questions are decided in a formal challenge to validity.

Step 1: Before the grant issues

A person receiving notice of a probate application may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. The probate notice (Form P1) tells recipients of this right. WESA s. 106 allows a person to oppose the issue of a grant under the Supreme Court Civil Rules.

Filing a notice of dispute prevents a grant from being issued before the person can apply for an order requiring security. How much time interested people have to file after notice is given depends on the current rules, so it is worth confirming the timing with a lawyer or the court registry.

A government explanation of the rules says a notice of dispute lasts one year unless renewed by court order, can be withdrawn on Form P30, and ends when the will is proved in solemn form. It adds that an interested person can apply to remove it, and that only one notice of dispute may be filed for any one estate. Check the current rule text before relying on these details.

Other tools help at this stage. Any interested person may require a named executor to accept or renounce probate, or explain why administration should not be granted. The court may order a person who has control of certain documents or property to bring them to court, which a challenger can use to obtain original wills.

Step 2: Proving the will in solemn form

The formal challenge is an application to the Supreme Court for an order proving the will in solemn form under Rule 25-15. A petition is started if no existing proceeding fits. The capacity, undue influence and knowledge and approval questions are decided here.

The burden of proof depends on the ground. Where suspicious circumstances relate to capacity, the person propounding the will takes back the burden of establishing capacity. The standard stays the balance of probabilities. A person alleging undue influence or fraud generally must prove it unless s. 52 shifts the onus. How a particular case moves through hearing or trial depends on its facts and on the court's directions.

Who can act, and deadlines

A beneficiary, an intestate successor, or a person who may commence a wills variation claim is a 'specified person'. With leave of the court, they may commence or defend proceedings in the name of the estate, if they made reasonable efforts to get the personal representative to act, act in good faith, and it is necessary or expedient to protect the estate or their interests. A person with an interest in the estate may also apply to remove or pass over a personal representative.

For a wills variation claim, a copy of the initiating pleading must be served on the executor no later than 30 days after the 180-day period, with provision for extensions. It is not settled here whether the general two-year limitation period in the Limitation Act applies to a validity challenge. That Act sets a basic 2-year period from discovery and a 15-year ultimate period, but it does not apply where another enactment sets the period. Get advice early on deadlines.

What to do next

• Find out whether a probate application or grant exists, and when any grant issued.
• If you received a probate notice, consider filing a notice of dispute promptly.
• Collect the will, earlier wills, medical records and names of witnesses you can lawfully access.
• If you are a spouse or child, consider whether a wills variation claim under s. 60 is also available.
• Check that the current forms (P1, P29 to P34) and Rule 25 numbering are those you are using.
• Book time with a wills and estates lawyer before any deadline passes.

Frequently asked questions