How to File a Wills Variation Claim in British Columbia

You were a spouse or child of someone who has died, and their will leaves you little or nothing. You may be wondering whether the law allows you to challenge it, and how quickly you need to act.

In British Columbia, this is called a wills variation claim. This article explains who can bring one, the deadline, the steps that follow and how courts decide. It is general information, not advice on your case.

This article covers the law of British Columbia.

Who can bring a claim

Under section 60 of the Wills, Estates and Succession Act (WESA), if a will does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order provision that it thinks adequate, just and equitable in the circumstances be made out of the estate.

So the claim is open to the will-maker's spouse or children. Whether you qualify as a spouse, and whether an adult child's circumstances support a claim, depend on the facts and are worth confirming with a lawyer.

If the executor lives outside British Columbia, you may wonder whether a BC court can deal with the matter. A real and substantial connection to BC is presumed in a proceeding concerning the administration of a deceased person's estate where the deceased had immovable property in BC, or movable property anywhere if ordinarily resident in BC at death. An executor living outside BC can therefore be subject to BC court jurisdiction. However, a BC court may decline jurisdiction if a court of another province or country is a more appropriate forum.

The deadlines that matter

The 180-day deadline is strict. A wills variation proceeding must be commenced within 180 days from the date the representation grant is issued in British Columbia, or the court must not hear it. The clock runs from the grant, not from the date of death.

A copy of the initiating pleading must also be served on the executor, generally within 30 days after the 180-day period expires, or the proceeding must not be heard. Because this wording is technical, confirm the exact rule and any extension powers with a lawyer.

A wills variation claim is separate from other estate disputes. For example, a claimant whose claim against the estate is disputed must commence a proceeding within 180 days after notice of the dispute or after the claim falls due. Which rules apply to you depends on the kind of claim, so it is worth confirming with a lawyer.

Extra people who must be served

If there are minor children, or the spouse or a child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee. For Nisga'a citizens or treaty First Nation members, it must also be served on the Nisga'a Lisims Government or the treaty First Nation. Missing a required service step can put the claim at risk.

How the court decides

The question is whether the will makes adequate provision for proper maintenance and support, and if not, what provision is adequate, just and equitable in the circumstances. The court may accept the evidence it considers proper about the will-maker's reasons for the dispositions made.

• Whether the will makes adequate provision for the proper maintenance and support of the will-maker's spouse or children
• If it does not, what provision would be adequate, just and equitable in the circumstances
• The evidence the court considers proper about the will-maker's reasons for the dispositions made

These are the questions the law puts in front of the court. Outcomes depend on the evidence.

Meanwhile, the executor may not distribute the estate within 210 days after the grant is issued, except by court order. After that, distribution requires court consent, or the consent the section requires, if relief is sought under the wills variation provisions.

A court must not hear a wills variation proceeding that was started outside the 180-day period. How the test applies to you depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Find out whether a grant has been issued and note its date
• Count 180 days from that date and mark the deadline in your calendar
• Get a copy of the will and list the assets as best you can
• Collect documents showing your finances and your relationship with the will-maker
• Identify anyone who must be served, such as minors or an incapable family member
• Speak with a lawyer early, before the deadline is close

Frequently asked questions