There are many reasons to contest a Will. You may want to contest a Will if you have been disinherited, received much less than your siblings, or if you suspect the Will does not represent the true wishes of the deceased person.
You can contest a Will in BC to seek justice and ensure your loved one’s true wishes are respected. If you want to contest a Will, there are important deadlines, called limitation periods, that must be met.
If you miss the deadline, it may be too late. This article explains how long you have to contest a Will in BC and answers some top FAQs on the process for contesting Wills.
The timeline that applies depends on the type of claim you bring.
The spouse or child of a will-maker can apply for a variation of a Will under to section 60 of the Wills, Estates, and Succession Act (WESA). The basis of a wills variation claim—which can be brought by only the spouse or child of the deceased person—is that the Will didn’t make “adequate provision” for the “proper maintenance and support” of the claimant in all the circumstances.
The timeline for starting a wills variation claim is set out in s. 61 of the Wills, Estates, and Succession Act. This type of claim must be brought 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. In fact, there is an advantage to starting the claim before probate is granted. 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 wills variation claim within the six month period, you lose the right to bring a claim. There are a few narrow exceptions where the six month period may be extended, one example being where someone else has already commenced a wills variation claim within the six month limitation period. Even though the six month limitation period has passed, other eligible claimants 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 parent’s Will, the best course of action is to talk to a lawyer without delay to ensure the deadline is not missed.
A Will can be challenged for other reasons, including:
You don’t have to be a spouse or child of the deceased person to contest a Will for those reasons. A Will challenge on these grounds can be by brought any beneficiary under the Will, a beneficiary under a previous Will, or other parties with a financial interest in the Will.
A two year limitation period applies to these types of claims. In most cases, the two year limitation period begins to run from the date of the deceased’s death.
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.
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.
For example, if a beneficiary believes the Will is invalid and intends to seek proof of the Will in solemn form, a Notice of Dispute can be filed to halt to process until the validity issue is addressed. The probate 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 being that the administration of an estate 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.
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.
The general rule is that where there is a legitimate wills variation claim or a genuine dispute about the validity of a Will, even an unsuccessful party may be awarded costs paid out of the estate.
But that does not mean you should expect to receive costs from the estate. The Court may order you to bear your own costs, or order you to pay another party’s costs if your case is unsuccessful or frivolous.
One of the executor’s many duties is to try to uphold the validity of a Will. An executor can’t make a contested claim against the estate (e.g., a wills variation claim), nor can an executor contest a Will.
An executor who wants to make a those types of claims against the estate should renounce the executorship. It the executor has already been appointed, he or she should resign or be during litigation.
There are two main outcomes:
When a wills 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 wills variation action goes to trial. Of course, it’s also possible to settle a wills variation action by negotiated settlement or mediation, without the need for a trial.
If you challenge the validity of a Will on other grounds (e.g., undue influence, the Will was not executed properly, fraud, lack of capacity), 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 and the Court’s ruling.
If the entire Will is declared invalid, it is set aside and not given effect. The deceased’s next most recent valid Will, if one exists, is used to determine how the estate will be dealt with. For that reason, it is extremely important to know what any prior Will says before you contest a Will in Court.
If the Will challenge is successful but there is no prior valid Will, the deceased will be considered to have died intestate. That means the deceased’s estate will be distributed according to the intestacy rules in the Wills, Estates and Succession Act.
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. 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 leave 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.
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.
Onyx Law Group has the experience and knowledge to help you. When it comes to estate litigation, we are empathetic, creative, and focused on getting the results you want. Contact us today.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at