Family, Estates & Trusts 



Limitation period for wills variation in British Columbia

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.

What is the time limit for starting a wills variation claim?

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).

What happens if the wills variation claim is started after the limitation period has run out?

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.

Can the limitation period be extended?

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.

Facts in Chan: Wills variation claim started after expiration of limitation period

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.

Conduct of defendants prevented them from relying on the limitation period

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:

  • Just before their father’s death, the brothers told the sisters that they had discussed the distribution of shares in the family business, that it was unfair to the sisters, and that the brothers “would see something done to rectify the imbalance.”
  • After the father’s death, the brothers told the sisters to wait until “after the will is settled.” On a number of occasions the sisters asked the brothers about dealing with the issues, but were repeatedly told to wait until they had finished with the will.
  • The brothers, as executors, failed to give the sisters written notice that an application for probate had been made. They also failed in their role as executors to tell their sisters that probate had been granted.

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.

Take home point on the limitation period for bringing a wills variation application in British Columbia

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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