How to Stop Probate or Challenge a Grant in British Columbia

If you think a will is wrong, or you are worried that the wrong person is about to receive a grant of probate, the first question is usually what you can do and how fast. In British Columbia, the process has built-in notice steps that give you time to find out what is happening.

This article explains those steps, the checks you can make early, and the court options that exist if you have concerns about the person managing the estate. The formal process for objecting to a grant at the court registry is technical, so a lawyer should confirm the current steps and forms for your situation.

This article covers the law of British Columbia.

The notice you should receive before probate is applied for

Before someone applies for a grant of probate or administration, they must give notice of the proposed application to the persons the Supreme Court Civil Rules specify. For a will, that includes each beneficiary under the will, as well as living executors and alternate executors.

The notice (Form P1) must be delivered with a copy of the will the application relates to, which is the main way a beneficiary gets a copy of the will. The applicant cannot file the probate application until at least 21 days after delivering the notice.

That 21-day gap is your practical window to read the will, get advice and decide whether to act. The notice must also tell beneficiaries or intestate successors that the applicant has to provide an accounting of how the estate was administered and how its assets were distributed.

Checking what will exists

If you are not sure which will is the right one, you can search for a wills notice. After the will-maker has died, anyone who provides the required documents and payment can apply to the Vital Statistics Agency for a search. If the will-maker is still alive, only the will-maker or a lawyer can request it.

The search costs $20, plus $5 for each additional name the will-maker may have used, and courier delivery costs an extra $33. Fees can change, so confirm them before you apply. You apply using the Application for Search of Wills Notice (VSA 532), by mail to the Vital Statistics Agency in Victoria or in person at a Service BC counter (not in Vancouver, Burnaby or Surrey), with a photocopy of the death certificate.

Keep in mind what the result shows. It gives only the date the registered will was signed, where it was kept at that time, and the date the wills notice was received. Vital Statistics does not keep a copy of the will or any record of what it says.

Challenging the person managing the estate

Sometimes the concern is less about the will and more about who is acting. Any person with an interest in an estate may apply to the court to remove or pass over a personal representative. The court may do so on listed grounds, including being incapable of managing their own affairs, being an undischarged bankrupt, a conviction for an offence involving dishonesty, or being unable, unresponsive or unwilling to act to the extent that it hampers administration.

An application to remove, substitute or pass over a personal representative must be served on each personal representative, and personally served for these orders. If the court removes someone, it must generally appoint a substitute who consents to act, and the former representative's grant is revoked.

If the person is also a trustee, removing them as personal representative does not remove them as trustee, so a separate application may be needed. Executors and trustees can also ask the court for directions without starting another proceeding, and a beneficiary may, with leave of the court, start proceedings on behalf of the estate after showing reasonable efforts to get the personal representative to act.

Deadlines that keep running

A spouse or child who says the will does not make adequate provision for them must start a wills variation proceeding within 180 days from the date the representation grant is issued in BC. A copy of the initiating pleading must also be served on the executor no later than 30 days after that period ends, unless the court extends the time.

Generally, the personal representative must not distribute the estate within 210 days after the grant is issued without a court order or the consents the Act allows. Even after that, court consent is needed if proceedings that may affect distribution have started.

What to do next

• Note the date you received the notice of proposed application and count 21 days from delivery.
• Read the will you were sent and write down your specific concerns.
• Consider a wills notice search if you doubt that you have the right will.
• Diarize the date any grant is issued, because the 180-day and 210-day periods run from it.
• Speak with a lawyer promptly about the formal steps to object, since the court's application process was updated recently and forms and procedures should be confirmed.

Frequently asked questions