Who Can Challenge a Will in British Columbia?

Whether you can challenge a will often comes down to your relationship to the person who died. British Columbia law is specific about who can ask the court to change a will.

This article walks through spouses, children, beneficiaries and other interested people, and flags the exceptions that catch people out.

This article covers the law of British Columbia.

Standing depends on the type of challenge

Standing means having a legal right to bring a claim. For a wills variation claim under section 60 of the Wills, Estates and Succession Act (WESA), the section names only the will-maker's spouse or children. It does not name other relatives, beneficiaries or interested persons. Other kinds of challenge, such as arguing a will is invalid, depend on your interest in the estate and the facts, so a lawyer can confirm where you stand.

Spouses

Two people are spouses if they were married to each other, or if they had lived together in a marriage-like relationship for at least 2 years. Status is generally judged as of the date of death. Several exceptions matter.

• Separated married spouses: married persons stop being spouses for WESA purposes when an event occurs that gives rise to an interest in family property under the Family Law Act, such as separation.
• Reconciliation: spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for one or more periods totalling at least 90 days.
• Common-law partners: a marriage-like relationship stops counting once one or both people end it, so a former common-law partner whose relationship ended before the death is not a spouse who can claim.

Children

Children of the will-maker can bring a wills variation claim. Adoption has its own rule. 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.

Section 60 names only the will-maker's spouse or children, and no other relatives. Whether stepchildren or grandchildren can claim is a question for the courts, so get advice before assuming either way.

Beneficiaries and other interested people

If you are a beneficiary but not a spouse or child, section 60 does not give you a wills variation claim. You may still have other tools.

• Notice of dispute: a person who is or must be given notice of the application, or who claims an interest under a prior or later will, may file one, and while it is in effect the registrar must not issue a grant.
• Notice of proposed application: before applying for a grant, the applicant must deliver Form P1 to listed persons, 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.
• Citation: a person interested in the estate may personally serve a citation on each named executor, who must respond within 14 days after service and may be deemed to have renounced executorship.

A notice of dispute can be removed on application by any interested person if the court finds the filing is not in the best interests of the estate.

What to do next

• Confirm your relationship to the will-maker, including dates of marriage, separation or cohabitation if you were a spouse.
• Find out whether a grant has been issued and when, because a wills variation claim must be started within 180 days of that date.
• If the will-maker had minor children, or a spouse or child who is mentally incapable, remember the Public Guardian and Trustee must be served or the claim will not be heard.
• Search Court Services Online by the deceased's last name to see whether a probate or dispute file exists.
• Book time with a lawyer before you act, since your standing may depend on details.

Frequently asked questions