You may want to contest a will if you have been disinherited, did not receive a fair share in comparison to your siblings, or if you suspect the will does not represent the true wishes of the deceased person. Generally, the time you have to contest a will in BC is 180 days from the day the will was probated.
On the other hand, if you want to contest the validity of a will, you must challenge the will within two years from the date you knew or ought to have known of the grounds for the claim. Failure to meet these deadlines may cause you to lose the right to contest the will or influence the validity of the will.
Wondering how long you have to contest a will in Canada? With over a decade of experience focused on estate litigation, Onyx Law Group helps you act fast and protect your rights. Our wills and estates lawyers have the experience and knowledge necessary to successfully help you maximize settlement value for contesting wills and trusts claims. Contact us today for a consultation and let us help you win your case.
This article explains how long you have to contest a will in BC and answers some top FAQs on the process for contesting wills.
Timelines for Contesting a Will in BC
The timeline that applies for contesting a will depends on the type of claim you are filing. You must understand the exact timeline that applies to your claim to avoid losing your right to contest the will. The timelines include:
Six-Months Deadline
The spouse or child of a will maker can apply for a variation of a will under Section 60 of the Wills, Estates, and Succession Act (WESA). The basis of a will’s variation claim, which can be brought by only the spouse or child of the deceased person, is that the will’s contents didn’t make “adequate provision” for the “proper maintenance and support” of the claimant in all cases, including their financial circumstances.
The timeline for starting a wills variation claim is within 180 days of the day the will is probated (i.e., processed as valid) in the Supreme Court of British Columbia. While the six-month limitation period does not begin to run until probate is issued by the probate registry, you don’t have to wait until probate is granted to start a wills variation claim. Once a will has been probated, a motion in the Supreme Court is needed to return the Certificate of Appointment of Estate Trustee.
If you do not bring a will variation claim within the six months, you will lose the right to bring a claim. There are a few narrow exceptions where this time may be extended. One example is where other beneficiaries named have already commenced a will variation claim within the six-month limitation period. Even though the six-month limitation period has passed, other eligible beneficiaries named can bring a “late” claim, so long as there has been no settlement in the claim that was initiated first.
If you were disinherited or treated unfairly and think you want to vary your spouse’s will or your parents will, the best course of action is to talk to a lawyer without delay to ensure the deadline is not missed.
Two-Year Limitation Period
You don’t have to be a spouse or biological child of the deceased to contest a will. A will can be disputed for other reasons, and such challenges may be brought by any beneficiary under the will, a beneficiary under a previous will, a person named in beneficiary designations, or other parties with a financial interest in the estate. These reasons may include a lack of testamentary capacity (mental capacity), undue influence, fraud or forgery, improper execution of the will, or ambiguity or errors in the will.
The timeline for challenging the validity of a will is two years from the day you knew or ought to have known that you had a claim. The determination based on the two-year limitation period for contesting the validity of a will is subject to the discovery rule. This means the clock starts ticking when the potential claimant discovers, or reasonably should have discovered, facts that give rise to the claim.
There are some situations where the “discoverability” rules may apply to postpone the limitation period. The two-year limitation period would run from the date you knew or reasonably should have known that you had a claim. In any case, you should talk to an experienced estate litigation lawyer immediately to ensure that the limitation period is not missed.
Notice of Dispute To Freeze the Probate Process
Beneficiaries or other interested parties can file a Notice of Dispute under Rule 25-10 of the British Columbia Supreme Court Civil Rules, which effectively pauses any advancement of the administration of the estate.
Common grounds for this legal process include concerns about a lack of testamentary capacity, suspicions that the will-maker was unduly influenced, disagreements about who should act as executor, and suspicions of fraud or forgery. The court may consider whether a reasonable will-maker, acting voluntarily and with full capacity, would have made the same decisions reflected in the will.
For example, if a beneficiary believes the will was from undue influence or is simply invalid and intends to seek the will in solemn form to prove it, a Notice of Dispute can be filed to halt the process until the validity issue is addressed. In that case, the court registry is not permitted to issue an estate grant while a Notice of Dispute is in effect.
A Notice of Dispute is valid for one year after it is filed. The idea is that, for the administration of an estate to be executed properly, it should not be unduly delayed. Probate can’t be granted until the notice is withdrawn or removed. Notices of Dispute are intended to encourage interested parties to either settle estate disputes or commence estate litigation to deal with outstanding issues within that year.
Can You Appeal a Court Decision About a Will?
If you go to court to contest or vary a will in BC and the judge rules against you, you may still have options. In some cases, you can appeal the decision to the BC Court of Appeal.
An appeal is a review of whether the trial judge made an error in applying the law or in assessing the evidence. To succeed, you must demonstrate that a significant mistake was made that affected the outcome of your case.
Appeals are subject to strict deadlines, typically within 30 days of the judgment being entered. Because the appeals process is technical and costly, it’s important to get timely legal advice to assess whether pursuing an appeal makes sense for your situation.
Need Help Contesting a Will in BC?
To reiterate, the timeline for contesting a will for a wills variation claim is 180 days. Meanwhile, the timeline for challenging the validity of a will is two years from the day you knew or ought to have known that you had a claim. This timeline applies to spouses and children as defined under the Wills, Estates and Succession Act and, in some cases, the Family Law Act. If you think you want to contest a will in BC, the best course of action is to talk to an estate litigation lawyer immediately to ensure deadlines aren’t missed.
Whether you are contesting a will, filing a wills variation claim, or considering an appeal, Onyx Law Group has the experience to guide you through the process. With over 13 years of experience, our team is empathetic, solution-oriented, and focused on securing the results you want. Contact us today for trusted legal guidance before the deadline passes!
FAQs About Contesting a Will in BC
1. How Much Does It Cost to Contest a Will in BC?
Each estate dispute is unique, and the legal costs depend on several factors such as the number of issues and the number of parties to the dispute. The average cost to contest a will in BC ranges significantly depending on the circumstances of your case. Some types of estate litigation are more complex and can take years to resolve; legal costs in these cases will be higher than average.
2. Can Legal Fees Be Recovered if My Case Doesn’t Win?
If there is a legitimate will variation claim or a genuine dispute over a will’s validity, even an unsuccessful party may be awarded costs from the estate or, in some cases, from assets like bank accounts.
However, this is not guaranteed, and parties should not automatically expect to recover costs. Court-wide powers allow the judge to order you to bear your own costs or pay another party’s costs if your case is unsuccessful or frivolous.
3. Can an Executor Contest a Will?
One of the executor’s many duties is to carry out the true intentions of the will, provided it is valid. An executor can’t make a contested case against the estate (e.g., a will variation claim), nor can an executor contest a will.
An executor who wants to make those types of claims against the estate should renounce the executorship. If the executor has already been appointed, he or she should resign or be removed during legal action.
4. What Are the Potential Outcomes of a Wills Variation Claim?
The potential outcomes of a will variation claim are twofold. The Court will either find that the will made adequate provision for the claiming spouse or child and dismiss the case, or it will agree that the will failed to make adequate provision or unfairly disinherited the claimant, and adjust the distribution accordingly.
When a will variation action is successful, the Court will impose an alternative distribution of the estate assets that meets the deceased’s legal obligation and/or moral obligation. The Court will redistribute the estate in a way that ensures the surviving spouse’s or child’s share is adequate, just, and equitable in the circumstances.
Both of the outcomes discussed assume the will’s variation action goes to trial. Of course, it’s also possible to settle a will variation action by negotiated settlement or mediation, without the need for a trial.
5. What Are the Potential Outcomes of Contesting a Will?
If you challenge a will’s validity based on other factors such as unduly influence, joint tenancy holdings, or through a constructive trust claim, there are a few possible outcomes of a successful case. Parts of the will may be invalidated, modified, or interpreted by the Court, depending on the relief sought, the Court’s ruling, and applicable case law.
If the entire will is declared invalid, it is set aside and not given effect. In such cases, when this happens, the next most recent valid will before the deceased’s death, if one exists, is used to determine how the estate will be dealt with. Also, if the will challenge is successful but there is no prior valid will, the deceased will be considered to have died intestate.
6. What Happens if the Deceased Did Not Leave a Will?
Dying without a will is known as dying intestate. If your loved one died without leaving a will, there is no will to challenge and nothing to vary. Instead, the Wills, Estates and Succession Act sets out how the deceased’s estate is to be distributed to surviving family members. This does not include assets that pass outside the estate, such as those with a named beneficiary, like a life insurance policy. Before the estate can be distributed, someone must apply to be appointed to administer the intestate estate.
For example, if the deceased leaves a spouse but no descendants, the entire estate goes to their spouse. If the deceased leaves a spouse and children, the spouse inherits the “preferential share” plus half the residue of the estate, if any, over the preferential share amount. The remaining half of the residue of the estate, if any, is divided among the deceased’s children.