Who Must Be Served With a Wills Variation Claim in British Columbia?

If you think a will does not properly provide for you, a wills variation claim is the way to ask the court to change it. Starting the claim is only part of the job. The law also says who must receive a copy and by when, and missing a step can stop the claim from being heard.

This article walks through who can bring a claim under the Wills, Estates and Succession Act (WESA), who must be served, the deadlines, and a few special situations. It explains how things generally work. Your facts matter, so a lawyer can confirm how the rules apply to you.

This article covers the law of British Columbia.

Who can bring a wills variation claim

Under section 60 of WESA, the court can order that adequate, just and equitable provision be made out of the estate if a will does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children. Only a spouse or child can bring this claim. The section names no other relatives, beneficiaries or interested persons.

A spouse is someone who was married to the will-maker, or who had lived with the will-maker in a marriage-like relationship for at least 2 years, and status is generally judged as of the date of death. There are exceptions. Married spouses stop being spouses for WESA purposes when an event such as separation gives rise to an interest in family property under the Family Law Act. A marriage-like relationship stops counting once one or both people end it. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile for periods totalling at least 90 days.

This remedy is written around a will-maker who dies leaving a will. On its face it is a remedy against a will, not against a death without a will.

The deadlines that matter

A wills variation 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. A copy of the initiating pleading must then be served on the executor no later than 30 days after the 180-day period expires, unless the court extends the time for service.

Whether the 180-day filing limit itself can ever be extended is a question to raise with a lawyer promptly. Do not assume more time is available.

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

Who must be served

• The executor of the will: a copy of the initiating pleading, within the 30-day window after the 180 days end.
• The Public Guardian and Trustee: 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, or the claim will not be heard.
• The Nisga'a Lisims Government or the treaty first nation, as applicable: if the will-maker was a Nisga'a citizen or a treaty first nation member, the claim must not be heard unless the pleading is served on them.

If the Public Guardian and Trustee is served, it may appear, be heard and receive any costs the court orders. The Public Guardian and Trustee also says it must receive notice of a wills variation claim with a copy of the notice of civil claim.

One person's claim may be treated as brought for all persons who might apply. For limitation purposes it is conclusively deemed to be brought on behalf of all of them. That does not remove your own need to serve properly and on time.

Settlements, land and older estates

Only the court can vary a will, although capable adults may sometimes agree among themselves to distribute an estate differently. Some people cannot consent to a settlement. A child or youth under 19 cannot consent to a settlement of an estate claim, and no one can consent on their behalf. The Public Guardian and Trustee may comment to the court on a proposed settlement and may start a claim and instruct counsel for the child. For an incapable adult, only the adult, their legal representative or their litigation guardian can consent to a settlement, and the Public Guardian and Trustee must be served with the notice of civil claim.

If land may be affected, the claimant may register a certificate of pending litigation against it within 10 days after the initiating pleading is issued.

These rules apply to estates under WESA. Where a grant was issued before WESA came into force, the older Wills Variation Act governs instead, with its own time limit, so confirm which law applies to your estate.

What to do next

• Find the date the grant was issued in British Columbia, and count your deadlines from it.
• Confirm whether you are a spouse or child under WESA, including any separation or adoption questions.
• Find out whether the will-maker had minor children or whether any spouse or child is mentally incapable.
• Check whether the will-maker was a Nisga'a citizen or treaty first nation member.
• Identify any land that may be affected and ask about a certificate of pending litigation.
• Speak with a lawyer early, because missed service can end a claim.

Frequently asked questions