Contesting a Will in BC: Wills Variation
Onyx Law Group · Vancouver, British Columbia
When a will leaves a spouse or child without adequate provision, British Columbia law gives them a way to challenge it. Under the Wills, Estates and Succession Act (WESA), a spouse or child of the deceased can bring a wills variation claim asking the court to redistribute the estate on the basis of what is adequate, just, and equitable.
These claims move on a tight schedule. A wills variation action generally must be started within 180 days of the grant of probate, so acting early protects your position and gives you time to gather the financial and family history the court will weigh.
Onyx Law Group handles these disputes as a boutique estate and family litigation firm based in Vancouver. Our Vancouver estate litigation lawyers build the argument and advance it in court, so you have a voice in a dispute that is often as emotional as it is legal.
Key points
- A wills variation claim under WESA is open to a spouse or a child of the deceased who was left without adequate provision.
- The court can vary the will where it decides the distribution was not adequate, just, and equitable in the circumstances.
- A wills variation action generally must be commenced within 180 days of the grant of probate, so deadlines matter from day one.
- The court weighs both legal and moral obligations, factoring in the estate’s size, the relationship, and each person’s needs and contributions.
Learn more
Read more about how we handle these files on our Vancouver estate litigation lawyer page, or get in touch to talk through your situation.
Full transcript
Contesting a will / wills variation. If your spouse or parent died disinheriting you or leaving you with an inadequate, unfair, or unjust inheritance, you can have a right in British Columbia to contest their estate by commencing an action for wills variation pursuant to section 60 of the Wills, Estates and Succession Act. BC is unique in Canada in that it, along with Nova Scotia, are the only provinces that have wills variation law that allows adult independent children to contest a will on that basis. The rest of the provinces only have dependants relief legislation, which provides that you need to be not only a spouse or child but also financially dependent on the will-maker to have standing to bring a claim.
In the Supreme Court of Canada case called Tataryn v. Tataryn, the court found that a deceased person owes legal and moral obligations to a spouse and moral obligations to their children. Legal obligations are measured as if you had a notional separation with the deceased just prior to their death, and you look at the relevant division of family property under family law legislation, the Family Law Act. Moral obligations are measured regarding the quality and length of the relationship and factors including whether you contributed to the will-maker’s estate or provided unpaid services and caregiving, whether you had a legitimate expectation to an inheritance, whether there was any estrangement, whether you committed any misconduct against the deceased, or your financial need in the circumstances.
Each case will be examined on its facts, and the court has a lot of discretion to determine if a will should be varied in favour of the claimant. You have 180 days from grant of probate to bring a wills variation action, so don’t delay. If you want to pursue your claim, get in touch with us today and we will be happy to assist you in making a claim. Our lawyers are highly experienced at attaining great results for our clients.
Think a will has left you or a family member short? Book a consultation with Onyx Law Group to review your options — contact us here.
Frequently Asked Questions
Who can file a wills variation claim in BC?
Only a spouse or a child of the person who died can bring a wills variation claim under section 60 of the Wills, Estates and Succession Act. A spouse means someone who was married to the deceased or who lived with them in a marriage-like relationship for at least two years. A child means a biological or legally adopted child of any age. Grandchildren, stepchildren who were never adopted, and other relatives cannot apply.
How long do I have to start a wills variation claim in BC?
You have 180 days from the date the grant of probate is issued to file a wills variation claim in the Supreme Court of British Columbia, and the claim must then be served on the executor within 30 days after that period ends. Missing the 180-day deadline usually ends the claim, so it is wise to get advice as soon as probate is granted.
What does the court consider when deciding a wills variation claim?
The court asks whether the will made adequate provision for the proper maintenance and support of the spouse or child, and if not, what division would be adequate, just, and equitable. Judges weigh the size of the estate, the applicant’s financial need, contributions made to the deceased or their assets, and any moral obligation the will-maker had. The Supreme Court of Canada’s decision in Tataryn v Tataryn Estate guides how these considerations are balanced.
Can a parent disinherit an adult child in BC?
A parent can leave an adult child out of a will, but that child can still apply to vary it. BC courts recognize a moral duty to independent adult children that can support a variation, though it carries less weight than the duty owed to a spouse or a minor child. A valid reason for disinheritance, such as long estrangement the parent did not cause, can reduce or defeat the claim.
Onyx Law Group represents clients in family law throughout British Columbia, estate and trust litigation, estate planning and probate matters. Consult with our experienced BC team at
(604) 900-2538