Can Wills Variation Claims Be Settled Without Trial in British Columbia?

Estate disputes are stressful and costly in family terms as well as money. Many families would rather reach an agreement than wait for a court decision.

This article explains how early resolution generally works in British Columbia, who must agree, and where the law limits what a family can do on its own.

This article covers the law of British Columbia.

Can you settle without a trial?

Yes, often.

Mediation is a meeting where a neutral person helps the people in a dispute talk through options. The mediator does not decide the outcome. Settlement offers are proposals one side puts to the other. Whether and when to use either is a decision to make with a lawyer.

What shapes a fair settlement

People usually settle in the shadow of what a court might do. The court asks whether the will makes adequate provision for the proper maintenance and support of the spouse or children, and may order what is adequate, just and equitable.

• The Supreme Court of Canada has said this standard is measured by legal obligations and moral obligations.
• Where priorities must be set, claims based on legal obligations generally take precedence over purely moral claims.
• The court may accept evidence about the will-maker's reasons and weigh it against all the circumstances.
• The court may refuse an order to a person whose character or conduct disentitles them.

Who has to agree, and special protections

Only a spouse or child can bring the claim, but an agreement affects everyone with an interest. A personal representative must not distribute the estate within 210 days after the representation grant is issued unless the court orders otherwise, and the estate may also be distributed within that time if all beneficiaries with an interest and all persons who may bring a wills variation proceeding consent.

Some people cannot simply sign:

• 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.
• For an incapable adult, only the adult, their legal representative or their litigation guardian can consent.
• The Public Guardian and Trustee must be served when the will-maker has minor children or a spouse or child is mentally incapable.

Costs and deadlines while you negotiate

If a case is not settled, costs of a proceeding must be awarded to the successful party unless the court orders otherwise. The court may make a costs order against a party who did or omitted something improperly or unnecessarily. These rules are one reason many people weigh settlement carefully.

The filing deadline does not wait for negotiations. A claim must be started within 180 days from the date the grant is issued. Ask a lawyer how to protect that deadline while discussions continue.

What to do next

• Confirm the grant date and your filing deadline.
• Identify everyone with an interest, including any minor or incapable person.
• Gather the will, estate information and any statements about the will-maker's reasons.
• Ask a lawyer whether to file a claim while you explore mediation.
• Get any agreement reviewed before you sign it.

Frequently asked questions