Mediation and Settling a Wills Variation Claim in British Columbia

A wills variation claim is a court case, but many families would rather not take it all the way to trial. If you are a spouse or child who feels left short by a will, or a beneficiary facing such a claim, you may be wondering whether mediation or a negotiated settlement is realistic.

This article explains in general terms how settlement fits around a wills variation claim in British Columbia, who has to be involved, and why minors and mentally incapable adults change the process. Every estate is different, so treat this as background and not as advice.

This article covers the law of British Columbia.

What mediation and settlement mean in an estate dispute

Mediation is a structured conversation, led by a neutral person, where the people in the dispute try to reach their own agreement. The mediator does not decide who is right. A settlement is the agreement that comes out of it, whether it happens before a claim is filed, during mediation, or later on the eve of trial.

The claim itself comes from WESA section 60. 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 the provision it thinks adequate, just and equitable. A settlement is a way of reaching a similar result by agreement instead of by a judge's order.

The Public Guardian and Trustee says only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently. That is why the details of who is signing, and who is not able to sign, matter so much.

Who needs to be part of the discussion

Only the will-maker's spouse or children can bring a wills variation claim. Spouse status is generally judged at the date of death, and it includes people who were married or who had lived together in a marriage-like relationship for at least 2 years.

There are exceptions. Married spouses stop being spouses for these purposes when an event such as separation gives rise to an interest in family property under the Family Law Act, unless they reconciled in the way the Act describes. A common-law partner whose relationship ended before the death is not a spouse who can claim.

Exactly who should be at the table in a particular estate depends on your situation, and a lawyer can confirm. The law does name some people who must be brought into a claim:

• the executor, who must be served with the wills variation pleading no later than 30 days after the 180-day period expires, unless the court extends the time for service
• the Public Guardian and Trustee, if the will-maker has minor children or a spouse or child is mentally incapable
• the Nisg̱a'a Lisims Government or the treaty first nation, as applicable, if the will-maker was a Nisg̱a'a citizen or treaty first nation member

A wills variation proceeding brought by one person may be treated as brought for all persons who might apply, and for limitation purposes it is conclusively deemed to be brought on behalf of all of them. How that affects a deal with one family member depends on the facts, so it is worth confirming with a lawyer before you rely on any partial agreement.

Minors and incapable adults

This is where settlements most often become complicated. A child or youth under 19 cannot consent to a settlement of an estate claim, and no one can consent on their behalf. The Public Guardian and Trustee may comment to the court on a proposed settlement, and may start a claim and instruct counsel for the child.

For an incapable adult, only the adult, their legal representative or their litigation guardian can consent to a settlement. The Public Guardian and Trustee must be served with the notice of civil claim in that situation.

If the will-maker has minor children, or a spouse or child is mentally incapable, the wills variation pleading must also be served on the Public Guardian and Trustee or the claim will not be heard.

Deadlines and money keep moving during talks

Talking does not stop the clock. A wills variation claim must be started within 180 days from the date the representation grant is issued in British Columbia. The pleading must be served on the executor no later than 30 days after that period expires, unless the court extends the time for service.

An executor generally must not distribute the estate within 210 days after the grant, unless the court orders otherwise. The estate may be distributed earlier if all beneficiaries and all persons who may bring a wills variation proceeding consent.

Costs also shape negotiations. The costs of a proceeding must be awarded to the successful party unless the court orders otherwise, and the court may make a costs order against a party if something is done or omitted improperly or unnecessarily. Whether estate funds will pay for anyone's costs depends on the facts, so ask a lawyer before relying on that.

What to do next

• Find the date the grant was issued and count the 180 days now.
• List every spouse and child of the will-maker, including any minors or incapable adults.
• Ask whether the Public Guardian and Trustee must be notified.
• Gather the will, any statement of reasons, and an estate asset list.
• Get legal advice before signing any agreement, and make sure any deal is written down.

If you are considering mediation, ask a lawyer how to protect your filing deadline at the same time so that settlement talks do not cost you the right to claim.

Frequently asked questions