Can a Stepchild or Grandchild Challenge a Will in BC?

If you are a stepchild or grandchild left out of a will, you may feel you were treated as family in every way except on paper. The law of wills variation is narrower than many people expect.

This article explains who the statute names, what other grounds may be open, and what steps are available to anyone with an interest in an estate.

This article covers the law of British Columbia.

Who can bring a wills variation claim

Only the will-maker's spouse or children can bring a wills variation claim under section 60 of the Wills, Estates and Succession Act (WESA). The section names no other relatives, beneficiaries or interested persons.

The section's wording refers to spouses and children and does not mention stepchildren or grandchildren. How this applies to you depends on your situation, so it is worth confirming with a lawyer before you assume either answer.

One related point: a parent-child relationship created by adoption is determined under the Adoption Act, and an adopted child is not entitled to the estate of a pre-adoption parent except through that parent's will.

Spouses are also defined narrowly

WESA also defines who counts as a spouse, which can matter when a will-maker had a partner. Two people are spouses if they were married to each other, or if they had lived with each other in a marriage-like relationship for at least 2 years, generally judged as of the date of death.

• Married spouses stop being spouses for WESA purposes when an event such as separation gives rise to an interest in family property under the Family Law Act.
• Unmarried partners stop counting as spouses once one or both end the relationship.
• Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for periods totalling at least 90 days.

Other ways to challenge a will

A wills variation claim is not the only route. A will can be attacked on validity grounds, and these may be worth discussing with a lawyer if you have a real concern.

Even a will that does not meet the formalities can be upheld, because the court may order that a record or document, including electronic data, is fully effective as the will-maker's will. Who has standing to raise these grounds depends on the facts.

Steps and deadlines for interested persons

Before a grant is applied for, the applicant must deliver a notice of proposed application in Form P1 to the persons listed in Rule 25-2(2), including each beneficiary under the will and those who would be intestate successors. The application cannot be made until at least 21 days after delivery.

A person who is or must be given that notice, or who claims an interest under a prior or subsequent will, may file a notice of dispute in Form P29 before the earlier of the issue of an authorization or the estate grant. While it is in effect, the registrar must not issue the grant.

If a wills variation claim is available to anyone, it must be started within 180 days from the date the grant is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that period expires, unless the court extends the time for service.

If the will-maker has minor children, or a spouse or child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee, or the claim will not be heard. A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise, although earlier distribution is possible if all beneficiaries and all persons who may bring a wills variation proceeding consent.

What to do next

• Write down your exact relationship to the deceased and anything that shows the person supported or treated you as family.
• Find out whether a probate file exists by searching the deceased's name on Court Services Online.
• Ask whether there is an earlier will, since a claim under a prior will is one basis for filing a notice of dispute.
• See a lawyer promptly, because a notice of dispute must be filed before the earlier of the issue of an authorization or the estate grant, while a wills variation claim must be started within 180 days from the date the grant is issued in British Columbia.

Frequently asked questions