Can You Stop Probate if You Believe a Will Is Invalid in BC?

You have heard that an executor is about to apply for probate, and you believe the will is invalid because of incapacity, undue influence, fraud or a problem with how it was signed. You want to know whether you can step in before the court issues a grant.

In British Columbia there is a formal step designed for this moment. This article explains what probate checks, how a notice of dispute works, what a citation is, and what usually follows.

This article covers the law of British Columbia.

What probate does and does not decide

Probate checks that a will was made without fraud or undue influence, and a will that passes these checks is described as valid. The government guide says this does not replace the advice of a lawyer.

If you disagree, the grant itself is the point to watch. After a grant issues, the personal representative must not distribute the estate within the 210 days following the grant, except by court order.

Filing a notice of dispute

WESA s. 106 allows a person to oppose the issue of a representation grant under the Supreme Court Civil Rules. Under Rule 25-10, a person receiving notice of a probate application may oppose a grant by filing a notice of dispute on Form P29. The probate notice (Form P1) tells recipients they have this right.

Form P1 says that filing a notice of dispute prevents a grant from being issued before the person can apply for an order requiring security. Because a notice of dispute works before a grant issues, timing matters. How long an applicant must wait after giving notice before applying for probate is worth confirming against the current Rule 25 text or with a lawyer.

Government guidance on the rules adds several points to confirm against the current rule text:

• A notice of dispute lasts one year unless renewed by court order.
• It can be withdrawn on Form P30, or it ends when the will is proved in solemn form.
• An interested person can apply to remove it, and a person may not file more than one notice of dispute for any one estate.

What a citation does

A citation is a different tool. The probate forms include Form P32 (Citation) and Form P33 (Answer to citation), and Rule 25-11 deals with citations. An estate-grant schedule asks whether anyone has filed a citation.

A related provision, WESA s. 108, lets any person interested in the estate require the named executor to accept or renounce probate, or explain why administration should not be granted. The exact steps and effect of a citation depend on the rule and the circumstances, so a lawyer should confirm how it fits your situation.

What happens after you oppose

A notice of dispute holds the process; it does not decide validity. A formal challenge is made by applying to the Supreme Court for an order proving the will in solemn form under Rule 25-15, usually by starting a petition if no existing proceeding fits. That is where capacity, undue influence and knowledge-and-approval questions are decided.

To get the original will or related documents, the court may order a person who controls or possesses them to bring them to court. If you allege the executor was involved in pressure or forgery, an interested person can apply to remove or pass over a personal representative. Separate claims have separate deadlines. For example, a wills variation claim must be commenced within 180 days from the date the grant is issued.

What to do next

• Check whether you received a probate notice (Form P1) and note the date you received it.
• Timing can matter in these situations, so it is worth speaking with a lawyer early about whether a notice of dispute suits your situation.
• Collect the will, earlier wills, medical records and a list of people who witnessed the signing.
• Ask a lawyer whether a notice of dispute, a citation or another step suits your situation.
• Check the current Rule 25 text and forms before filing, since the probate rules have been amended.

Frequently asked questions