Time Limit to Contest a Will in British Columbia: 180 Days and More

If you think a will treats you unfairly, the clock matters more than almost anything else. Some deadlines start only once probate is granted, while others must be met before it is. Mixing them up can cost you the right to be heard.

This article walks through the main time limits in British Columbia for a wills variation claim and for the steps that come before it. Every estate is different, so use this as a map and confirm your dates with a lawyer as early as you can.

This article covers the law of British Columbia.

The 180-day limit for a 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. Under section 60 of the Wills, Estates and Succession Act (WESA), the court may order the provision it thinks adequate, just and equitable be made out of the estate.

The claim must not be heard unless the proceeding is started within 180 days from the date the representation grant (probate or administration) is issued in British Columbia. The count starts at the date of the grant, not the date of death and not the date you learned about the will.

Starting the proceeding is not the last step. A copy of the initiating pleading must be served on the executor no later than 30 days after the 180-day period expires, unless the court extends the time for service. The extension mentioned there is about service. Whether anything can be done about a missed filing date depends on the facts, so get advice immediately rather than assuming.

Extra service steps that can stop a claim

Some claims must also be served on others, or they will not be heard. If the will-maker has minor children, or a spouse or child of the will-maker is mentally incapable, the pleading must also be served on the Public Guardian and Trustee.

If 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.

Two other timing points are worth knowing. A wills variation proceeding brought by one person may be treated as brought for all persons who might apply, and for limitation purposes it is conclusively deemed to be brought on behalf of all of them. Also, within 10 days after the initiating pleading is issued, a claimant may register a certificate of pending litigation against land affected by the claim.

Deadlines that come before the grant

Not every dispute waits for probate. Before applying for a grant, the applicant must deliver a notice of proposed application (Form P1) to the people listed in Rule 25-2(2), including each beneficiary under the will and those who would be intestate successors, and 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 (Form P29). It must be filed before the earlier of the issue of an authorization or of the estate grant (or resealing). While it is in effect, the registrar must not issue the grant.

A notice of dispute stops being in effect one year after it was filed, at the end of any renewal period, when it is withdrawn, when the will is proved in solemn form, or when the court orders it removed. If you ask to renew it after it 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.

Deadlines at a glance

The 210-day hold protects the 180-day window for wills variation claims. The estate may be distributed earlier if all beneficiaries with an interest, and all persons who may bring a wills variation proceeding, consent.

What to do next

Treat the grant date as the key date and work backward from it. Older estates may fall under earlier legislation, so ask a lawyer to confirm which rules apply to your estate.

• Find out whether a grant has been issued. You can search probate and caveat/dispute cases on Court Services Online by the deceased's name, using all or part of the last name.
• Write down the grant date and calculate 180 days, then the further 30 days for service.
• Consider whether a notice of dispute is needed before a grant issues.
• Check whether minor children, an incapable family member or a treaty first nation connection means extra service is required.
• Ask the executor in writing not to distribute estate property while you get advice.
• Gather the will, any earlier wills, and details of family members and assets, then speak to a lawyer promptly.

Frequently asked questions