Can You Stop Probate While Challenging a Will in British Columbia?

If you plan to challenge a will, the worry is often that the executor will quickly obtain a grant and start dealing with the estate. In British Columbia there is a formal way to pause that process, but it has to be used at the right time.

This article explains the notice of dispute, how long it lasts, what the executor or others can do about it, and what protections exist even after a grant is issued.

This article covers the law of British Columbia.

The notice of dispute

British Columbia's equivalent of a caveat is the notice of dispute. A person who is or must be given notice under Rule 25-2(2), or who claims an interest under a prior or later will, may file one. It must be filed before the earlier of the issue of an authorization or of the estate grant, or resealing.

The notice must be in Form P29 and must give an address for service. You must not file more than one notice of dispute for any one estate.

While the notice is in effect, the registrar must not issue an estate grant or authorization, or reseal a foreign grant, for that estate. That is how it pauses probate.

Watch for the notice of proposed application

Before applying for a grant, 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.

If you receive this notice, treat the 21 days as the time to act, because a notice of dispute is only useful if filed before the grant is issued.

How long a notice of dispute lasts

A notice of dispute stops being in effect when any of these happens:

• one year after it was filed
• the end of any renewal period
• the disputant withdraws it, using Form P30
• the will is proved in solemn form
• the court orders it removed

The court may renew a notice for any period it considers appropriate. If you apply after the notice has lapsed, you must show good reasons it could not be brought earlier, substantial prejudice to you, and no substantial prejudice to other interested persons.

Proof in solemn form means the court pronounces for the force and validity of the will after a trial or hearing.

What the other side can do

Any person interested in the estate may apply, on notice to you, to have a notice of dispute removed. The court may order removal if the filing is not in the best interests of the estate. A notice should therefore rest on a real concern, not a delay tactic.

A person interested in the estate may also serve a citation in Form P32 on a named executor, requiring them to apply for probate. A cited person must respond within 14 days after service, and may be deemed to have renounced executorship.

If proceedings go to court, costs must be awarded to the successful party unless the court orders otherwise, and the court may make a costs order against a party who acts improperly or unnecessarily.

Protections after a grant, and what to do next

If a grant has already been issued, you may still have options. 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 that time if all beneficiaries with an interest in the estate and all persons who may bring a wills variation proceeding consent.

A wills variation claim must be started within 180 days of the grant, and the court may suspend administration of the estate in whole or in part. Anyone bringing a variation claim must be a spouse or child.

• Search Court Services Online for probate and caveat or dispute cases using the deceased's last name, to see if a file exists
• Note the date of any Form P1 notice you received
• Confirm your interest in the estate, since that decides whether you may file a notice of dispute
• Get legal advice quickly, because the time to file closes once a grant issues

Frequently asked questions