What is the limitation period for bringing a wills variation claim in British Columbia? It is important to know how long you have to challenge a will, as missing the deadline means losing the opportunity to ask the court to change the way a will divides an estate.
The law in British Columbia that applies to wills variation claims, called the Wills Estate and Succession Act, SBC 2009, c. 13
, sets out the limitation period. It states that the time limit for bringing a wills variation claim is 180 days from the grant of probate (probate is a process that ensures the will is real and was left by the deceased).
If a wills variation claim is brought more than 180 days after the grant of probate, it is “statute-barred.” That means the opportunity bring a legal action to vary the will is lost.
In general, time limitations are strictly enforced by the courts, so if you think you have a claim against an estate, you should speak to a lawyer to ensure you do not miss important deadlines.
While limitation periods are usually strictly enforced, there are occasionally exceptions. For example, in Chan v. Lee Estate, 2004 BCCA 644, the court found that it would be unfair to apply the limitation period because of the particular situation that caused the claimants to miss the deadline.
In Chan, two sisters wanted to vary their father’s will, which heavily favoured their three brothers. All five siblings worked hard for the family business, but the father showed preference and gave greater financial assistance to the sons. The brothers were given shares in the family business while their father was alive, and his will left more shares to the sons (but none to the daughters). The sisters brought a wills variation claim asking for a greater portion of their father’s estate. However, the sisters did not start their claim until more than a year after probate was issued.
The brothers, who were also executors of their father’s will, opposed their sisters’ claim and pointed out that the limitation period to bring a wills variation claim had expired. The judge found that the limitation period did not apply to prevent the sisters’ claim because the conduct of the brothers “lulled” the sisters into failing to take any particular action:
On all the evidence, from at least the time of the father’s death until three years later, the brothers led the sisters to believe that they would address the unfairness in the distribution of their father’s estate, while at the same time they stalled and put off the uninformed sisters whenever they could.
The sisters did not press the brothers for a resolution of these matters with the time limit, but it was the brothers’ conduct that kept the sisters from knowing that the clock was running on the time to bring a claim. As such, the court found that the brothers could not rely on the limitation period as a defence to the claim because of their own conduct.
The time limit for bringing a wills variation claim is 180 days from the grant of probate, and generally speaking, the limitation period is strictly enforced. That being said, as the Chan case shows, there may be very specific situations where the court may find it to be unfair to strictly enforce the limitation period with respect to a wills variation claim.
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