Timing comes first in an estate dispute
Several estate remedies are lost or weakened simply because nobody acted in time, so our first questions are about dates: when the person died, whether anyone has applied for a grant, and whether a grant has already issued.
| Stage | What can be done | Where the rule comes from |
|---|
| Before any grant issues | A person entitled to notice of the probate application, or someone claiming under an earlier or later will, can file a notice of dispute (Form P29). While it is in effect, no grant issues. | Supreme Court Civil Rules, Rule 25-10 |
| Up to 180 days after the grant | A spouse or child can start a wills variation claim, then must serve the executor within 30 more days unless the court extends that time. | WESA, sections 60 and 61 |
| Up to 210 days after the grant | The executor may not distribute without a court order or the consents the Act lists. | WESA, section 155 |
| Any time the estate is open | A person with an interest in the estate can apply to remove or pass over an executor or administrator. | WESA, section 158 |
The notice of dispute is a holding step, not a lawsuit. A person may file only one for an estate. It lapses one year after filing unless the court renews it, and it ends sooner if it is withdrawn, if the will is proved in solemn form, or if the court orders it removed. Treating it as the end of the matter is a risk, because the year can run out before anything else is filed. We use that year to obtain documents and to decide whether a claim is worth bringing at all.
Challenging a will
Two different claims are bundled under “contesting a will”, and they lead to different results.
The first is that the will is not valid. The challenge may be that the will was not made with the formalities the Wills, Estates and Succession Act (WESA) requires, that the will-maker lacked the mental capacity to make it, or that someone pressured them into it. On pressure, section 52 helps the challenger: once it is shown that another person was in a position where the potential for dependence or domination of the will-maker was present, the side defending the will must prove that the position was not used to exert undue influence. The opposite tool is section 58. The court can order that a document that does not meet the signing rules is fully effective as a will, if it represents the deceased’s testamentary intentions. A typed draft on a laptop, or handwritten changes on an old will, can therefore matter in either direction. Our pages on undue influence and lack of capacity and the validity of a will or trust set out the tests.
The second accepts that the will is valid but says it is unfair to a spouse or child. Section 60 allows the court to order the provision it considers “adequate, just and equitable in the circumstances” where a will does not make adequate provision for the will-maker’s spouse or children. The Act does not limit claims to minor children; adult children can claim too. A spouse includes someone who lived with the will-maker in a marriage-like relationship for at least two years, provided they had not separated before the death. The 180-day limit in section 61 runs from the date the representation grant is issued in British Columbia, and if there are minor children, or a spouse or child is mentally incapable, the claim must also be served on the Public Guardian and Trustee. More on how judges weigh these claims: disinherited child, disinherited spouse, and the court’s view that spite is not a valid and rational reason to disinherit a child.
Some disputes are about gifts the will-maker made during their lifetime and whether they should count against the estate. See contesting a gift and our article on a lifetime gift from a parent to an adult child. What the deceased said about those transfers can be important, and the court has rules about when such statements are admitted; we discuss them in relying on statements of a deceased person.
When the executor is the problem
An executor, or an administrator where there is no will, has the deceased’s authority over the estate and a statutory duty to administer it, distribute it and account to beneficiaries and creditors (WESA, section 142). Silence is not compliance with that duty. The practical steps, roughly in order of escalation, are:
- A written request for an inventory, bank statements and an explanation of what has been paid out.
- An application under Rule 25-13 for an order that the executor pass accounts, which puts the accounts before the court for approval or objection. The same rule allows the executor’s remuneration to be fixed.
- An application under section 158 to remove the executor, or to pass over a person who has not yet been appointed. The court may do so where it considers they should not continue in office, for example where they refuse to act without renouncing, or are unresponsive, unwilling or unable to carry out their duties to an extent that hampers the efficient administration of the estate.
Executors also come to us when they are the ones under attack: a beneficiary is demanding early payment, or a sibling threatens a claim. Holding back distribution for the 210 days in section 155, and keeping clear records, protects an executor as much as anyone. Our article on removing an executor covers co-executors, and the challenging an executor work sits within our estate litigation group. Cost matters in these cases too; see how the court dealt with it in a long family dispute in costs of complex estate litigation.
Before a death: committeeship and the Public Guardian and Trustee
A different kind of dispute arises while the person is still alive. If an adult can no longer manage their money and never signed an enduring power of attorney, banks may refuse to deal with family members, and the remaining route is an application to the Supreme Court under the Patients Property Act.
- Who can apply: A near relative of the person, or another person, can ask the court to declare that the person is incapable of managing their affairs, themselves, or both.
- Evidence: The court acts on the affidavits of two medical practitioners. The person must be personally served with notice at least 10 days before the application; the court can dispense with that only if service would harm the person’s health or is otherwise inadvisable in their interests.
- Who manages: The court may appoint a committee, such as a family member. Unless and until someone other than the Public Guardian and Trustee is appointed, the Public Guardian and Trustee is the committee.
- Earlier documents: Once a person is declared a patient by court order, every power of attorney they gave ends, and their representation agreements end too unless the court orders otherwise.
The Public Guardian and Trustee’s office is at 700-808 West Hastings Street, a short walk from us. Families contact us when they disagree about who should act, when an attorney under an existing power of attorney is suspected of misusing it, or when the Public Guardian and Trustee has become involved and a relative wants to take over. Our committeeship applications page and the article on committeeship as a court-appointed decision-maker explain the process. A representation agreement for health and personal care, signed while a person still can, avoids much of it.
Probate when nothing is in dispute
Not every estate is a fight. An executor who simply needs a grant can apply in any Supreme Court registry in the province, including Vancouver’s at 800 Smithe Street. The application must include a certificate of a wills notice search from the Vital Statistics Agency; note that the Service BC offices in Vancouver, Burnaby and Surrey do not process those searches, so they are ordered by mail or at another Service BC counter. Veronica Manski leads our probate and estate administration work, including grants of probate and administration and the recognition in British Columbia of grants issued abroad. If a beneficiary cannot be found or will not respond, see what happens if a beneficiary does not claim an inheritance.
Our estate litigation lawyers
Candace Cho, KC and Judith A. Janzen joined forces in 2012. Candace leads the firm’s estate litigation practice, and contested estates are handled by her and the litigators below:
Wills, trusts and incapacity planning are led by Sandy Minh Abley through our estate planning group. Everyone else is on our team page.
Finding the office
Suite 1215, 650 West Georgia Street is steps from Vancouver City Centre station on the Canada Line and a few minutes on foot from Granville station on the Expo Line. Meetings can also be arranged by phone or video; ask when you book. For a separation or divorce, see our downtown Vancouver family lawyers.
Common questions
How long do I have to contest a will in BC?
For a wills variation claim by a spouse or child, the claim must be started within 180 days after the grant issues in British Columbia. Other claims, such as a challenge to validity, follow different rules, and some steps, like a notice of dispute, only work before a grant issues. Get advice as early as you can.
Can I stop the executor from getting probate while I decide?
If you are entitled to notice of the application, or you claim under another will, you can file a notice of dispute before the grant issues. It blocks the grant for up to a year unless renewed or removed. It does not start a claim by itself.
The executor will not tell me anything. What can I do?
Ask in writing first. If that fails, the court can order the executor to pass accounts, and in a serious case can remove them under section 158 of WESA.
My father has dementia and no power of attorney. Who can manage his money?
A relative can apply to the Supreme Court under the Patients Property Act to be appointed his committee, supported by two medical opinions. Until a committee is appointed by the court, the Public Guardian and Trustee fills that role once he is declared incapable.
Is the first meeting free?
For a contested estate, the first 30 minutes are free. For probate or planning, ask about the terms when you book on (604) 900-2538.
