When Must the Public Guardian and Trustee Be Served in a BC Wills Variation Claim?

A wills variation claim asks the court to change a will that does not adequately provide for the will-maker's spouse or children. If a child is young, or a family member cannot manage their own affairs, a public office may need to be involved.

That office is the Public Guardian and Trustee (PGT). Missing this one service step can end a claim before it is heard, so it helps to understand when it applies, what the PGT does, and how it fits with the other deadlines.

This article covers the law of British Columbia.

Who can bring a wills variation claim

Under section 60 of the Wills, Estates and Succession Act (WESA), the court may order that adequate, just and equitable provision be made from the estate if a will does not adequately provide for the proper maintenance and support of the will-maker's spouse or children. Only a spouse or child can bring the claim; the section names no other relatives, beneficiaries or interested persons.

Two people are spouses if they were married, or lived together in a marriage-like relationship for at least 2 years. There are exceptions. Married spouses stop being spouses when an event such as separation gives rise to an interest in family property under the Family Law Act. A common-law relationship stops counting once one or both people end it. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile for periods totalling at least 90 days.

When the Public Guardian and Trustee must be served

If the will-maker has minor children, or a spouse or child of the will-maker is mentally incapable, the wills variation pleading must also be served on the PGT, or the claim will not be heard. The PGT must receive notice of the claim with a copy of the notice of civil claim. For an incapable adult, the PGT must be served with the notice of civil claim.

• Minor children of the will-maker: serve the PGT.
• A spouse or child who is mentally incapable: serve the PGT.
• Any other situation: the PGT must still receive notice of a wills variation claim with a copy of the notice of civil claim. How this applies depends on your situation, so it is worth confirming with a lawyer.

A parallel rule applies where the will-maker was a Nisg̱a'a citizen or a treaty first nation member. The claim must not be heard unless the pleading is served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

What the PGT may do

Once served, the PGT may appear, be heard and receive any costs the court orders. The PGT may also comment to the court on a proposed settlement involving a child, and may start a claim and instruct counsel for the child.

Why settlement works differently

Only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently. That flexibility has limits.

In practice, a family settlement that affects a minor or an incapable adult generally cannot be finalized by private agreement alone, so legal advice is important.

Fitting the PGT step into the deadlines

A wills variation proceeding must be started within 180 days from the date the grant of probate or administration is issued in British Columbia. A copy of 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. The PGT service requirement is separate and must also be met, or the claim will not be heard.

One claim may be treated as brought for all persons who might apply, and for limitation purposes it is conclusively deemed brought on behalf of all of them. A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise. The estate may also be distributed within the 210 days if all beneficiaries with an interest in the estate, and all persons who may bring a wills variation proceeding, consent. Because minors and incapable adults cannot simply consent, early distribution can be difficult where they are involved.

What to do next

• Find the date the grant was issued and count 180 days from it.
• List the will-maker's spouse and children, noting any who are under 19 or mentally incapable.
• Check whether the will-maker was a Nisg̱a'a citizen or treaty first nation member.
• Do not agree to distribute the estate early without confirming who must consent.
• Speak with a lawyer early so every required service is completed on time.

Frequently asked questions