How to Object to a Probate Application in British Columbia

Finding out that a relative plans to apply for probate, and that you disagree with the will or with who has been named to handle the estate, can be stressful. The good news is that the process builds in a notice stage, so you usually have a chance to react before a grant is issued.

This article explains how objecting works in British Columbia: how you find out about an application, how to file a notice of dispute, and what other options may be open to you. It is general information, not advice on your situation.

This article covers the law of British Columbia.

How you find out an application is coming

Probate is the court process that checks a will is real, was made without fraud or undue influence, and is the last will the person made. Before anyone applies, they must deliver a Notice of Proposed Application in Relation to Estate in Form P1.

Where there is a will, the notice goes to the named executors and alternates who are alive and have a prior or equal right to apply, the beneficiaries, certain people who would inherit if there were no will, and the Attorney General if the government is entitled to the estate under the Escheat Act. Extra recipients apply in some cases: the Nisga'a Lisims government or a treaty first nation if the deceased was a member, and the Public Guardian and Trustee where a minor or a mentally incompetent person is involved. Where there is no will, it goes to the intestate successors, or the Attorney General if there are none, and to creditors whose claim exceeds $10 000.

The application cannot be made until at least 21 days after the P1 notice and materials are delivered. That window is your time to decide what to do. A notice sent by mail is deemed delivered on the date it is mailed, while a notice sent electronically only counts as delivered if the recipient gives a written acknowledgement of receipt.

A note on the wills notice search

People sometimes confuse a wills notice with an objection. A wills notice search is a search of Vital Statistics records, and two copies of the certificate must be filed with the application. A search must be submitted with every probate or administration application, even if the applicant believes they hold the original last will. It is a step the applicant takes, not a way for you to oppose the grant.

Filing a notice of dispute

A person entitled to notice, or a person claiming under an earlier or later will, can oppose the grant by filing a notice of dispute in Form P29. The court filing fee is $80.

A notice of dispute generally stops being in effect one year after it is filed. That means it is not a permanent block, and you should diarize the date if you file one.

On application, the court may vary who must receive notice. If a person entitled to notice has died, the notice goes to their personal representative. If you think you should have received a notice but did not, how to raise that depends on your situation, so it is worth confirming with a lawyer. Whether you qualify to file, and how to word your reasons, are also good questions to take to a lawyer.

Other options if a notice of dispute is not the right fit

The citation route is the one to use if your complaint is delay rather than disagreement. A wills variation claim has its own deadline, which runs from the date the grant is issued. Which steps fit your situation is worth confirming with a lawyer.

What happens after you file

Once someone has opposed the grant, the dispute is a court matter and the outcome depends on the facts, the evidence and the grounds raised. Because probate looks at whether the will is genuine, free of fraud or undue influence, and the last one made, those are the kinds of questions a court may consider.

Even after a grant is issued, the personal representative must generally not distribute the estate within 210 days, except by court order. The estate may be distributed earlier if all beneficiaries and all persons who could bring a variation claim consent. How long a contested application takes varies, so ask a lawyer about realistic expectations.

What to do next

• Find the date the P1 notice was delivered and count 21 days from that date.
• Confirm you are someone entitled to notice or someone claiming under another will before filing Form P29.
• Keep a calendar for the one-year life of a notice of dispute and for the 180-day variation deadline.
• Gather copies of any earlier or later will, correspondence, and the P1 notice itself.
• Speak with a lawyer early, since deadlines are short and the right tool depends on your relationship to the person who died.

Frequently asked questions