- If a will does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order provision out of the estate.
- A wills variation proceeding must be commenced within 180 days from the date the representation grant is issued in British Columbia, or the court must not hear it.
- A pending wills variation claim can lawfully delay distribution of the estate.
Being left out of a parent's or spouse's will, or receiving much less than you expected, is painful. British Columbia law gives certain family members a way to ask the court to change the result.
This article explains who can bring a wills variation claim, the standard the court applies and the strict deadline. The deadline is short, so if you think you may have a claim, get legal advice quickly.
This article covers the law of British Columbia.
What a wills variation claim is
A wills variation claim asks the court to change how an estate is divided under a will. It does not argue that the will is invalid. It accepts the will as valid but says it does not do enough for certain family members.
Who can bring a claim and what the court looks at
The claim is for the will-maker's spouse or children. If the will does not, in the court's opinion, make adequate provision for their proper maintenance and support, the court may order the provision it thinks adequate, just and equitable in the circumstances be made out of the estate.
The test is about adequate provision, not equal shares. Being left less than a sibling does not automatically succeed. Whether someone counts as a spouse, and how the circumstances of the claimant and the estate weigh in, depend on the facts and are worth confirming with a lawyer.
The court may also accept the evidence it considers proper about the will-maker's reasons for the dispositions made. Letters, notes and the will-maker's explanations may therefore become relevant.
Strict deadlines
| Step | Rule |
|---|---|
| Start the proceeding | Within 180 days from the date the representation grant is issued in British Columbia, or the court must not hear it. |
| Serve the executor | A copy of the initiating pleading must be served on the executor, generally within 30 days after the 180-day period expires, or the proceeding must not be heard. |
| Minors or incapable family members | If there are minor children, or the spouse or a child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee. |
| Nisg̱a'a or treaty First Nation members | The pleading must also be served on the Nisg̱a'a Lisims Government or the treaty First Nation. |
Because the clock runs from the date the grant is issued, not the date of death, check when the grant was issued as early as you can.
Effect on the estate
A personal representative must not distribute the estate within the 210 days following the date a representation grant is issued, except by court order. After that, they may not distribute without court consent, or the consent the section requires, if relief is sought under the wills variation Division. A pending claim therefore lawfully delays distribution.
What to do next
- Find out whether a grant has been issued and on what date.
- Get a copy of the will and a list of the estate's assets if you can.
- Collect evidence about your relationship with the will-maker and your financial needs.
- Keep any writing in which the will-maker explained their decisions.
- See a lawyer promptly, because the 180-day limit is firm.
Frequently asked questions
Can an adult child bring a wills variation claim?
The law refers to the will-maker's spouse or children, and the test is whether the will makes adequate provision for proper maintenance and support. How that applies to an adult child depends on the facts, so a lawyer can assess your situation.
How long do I have to start a claim?
A wills variation proceeding must be commenced within 180 days from the date the representation grant is issued in British Columbia, or the court must not hear it. The executor must generally be served within 30 days after that period expires.
Does a claim stop the executor from distributing the estate?
After the 210-day period, the personal representative may not distribute without court consent, or the consent the section requires, if relief is sought under the wills variation Division. A pending claim lawfully delays distribution.
Does the court consider why the will-maker made the choices they did?
Yes. The court may accept the evidence it considers proper about the will-maker's reasons for the dispositions made.
Sources
- Wills, Estates and Succession Act (WESA), s. 155 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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