Who Can Make a Wills Variation Claim Under Section 60 of WESA in BC

Being left out of a will, or given very little, is painful and confusing. In British Columbia, the court has a power to change a will in some cases, but not everyone who feels treated unfairly is allowed to ask for it.

This article explains who has standing to bring a wills variation claim under section 60 of the Wills, Estates and Succession Act (WESA), who does not, and what exceptions can change the answer. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What section 60 of WESA lets the court do

Section 60 applies when a will-maker dies leaving a will that, in the court's opinion, does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children. In that case the court may order that the provision it thinks adequate, just and equitable in the circumstances be made out of the estate.

This is a remedy against a will. The wording of the wills variation provisions is built around a person who dies leaving a will, so on its face it is not a remedy for a death without a will. Whether you qualify to ask is a separate question from whether you would win, and this article deals only with the first.

Who has standing: spouses and children

Only the will-maker's spouse or children can bring a claim under section 60. The section names no other relatives, beneficiaries or interested persons.

A person is a spouse under WESA if they were married to the will-maker, or if they had lived with the will-maker in a marriage-like relationship for at least 2 years. Spousal status is generally judged as of the date of death.

Exceptions that can change the answer

Married people 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. For unmarried partners, a marriage-like relationship stops counting once one or both people end it.

There is an exception for couples who reconcile. 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. Whether a particular reunion meets that test depends on the facts, so it is worth getting advice if your situation is close to the line.

Adoption also matters when children are involved. 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.

People who are not named in section 60

Because section 60 refers only to a spouse or children, other people are not named as claimants. That includes siblings, friends, caregivers and disappointed beneficiaries. Whether people such as stepchildren or grandchildren can bring a claim is a question that turns on how the courts have read the section, and it is something a lawyer can confirm for your circumstances.

If you are not a spouse or child, other routes may still exist. A will can be challenged as invalid on grounds such as these:

• The will-maker lacked mental capacity; a person who is 16 or older and mentally capable of doing so may make a will.
• The formalities were not met; a will must be in writing and signed by the will-maker in the presence of 2 or more witnesses present at the same time, who then sign in the will-maker's presence.
• Undue influence; once a person shows a position of potential dependence or domination, the party defending the will or gift must prove no undue influence was exercised.

Even a will that misses the formalities can sometimes be upheld, because the court may order that a record or document, including electronic data, is fully effective as a will. These are different claims from a wills variation claim, with their own evidence and risks.

Deadlines and who must be told

A wills variation claim must not be heard unless the proceeding is started within 180 days from the date the grant of probate or administration is issued in British Columbia. 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.

Some claims need extra notice. 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. For a Nisg̱a'a citizen or treaty first nation member, the pleading must be served on the Nisg̱a'a Lisims Government or the treaty first nation, as applicable.

A personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. That hold protects the claim window. The estate may be distributed earlier if all beneficiaries and all persons who may bring a wills variation proceeding consent.

What to do next

If you think you may qualify, start with the practical steps below rather than waiting.

• Work out your status: spouse, former spouse, or child, and gather proof such as a marriage certificate, dates of cohabitation or separation, and birth or adoption records.
• Find out whether a grant has been issued, because the 180-day period runs from that date. You can search probate cases by the deceased's name on Court Services Online.
• Write down the date of the grant as soon as you know it, and count forward.
• Collect a copy of the will, if you can, and note anything you know about the will-maker's family, assets and reasons.
• Speak with a lawyer early about standing, timing and any extra notice needed.

Frequently asked questions