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Wills Variation Act BC Limitation Period


A Wills Variation Claim is a legal process that allows spouses and children of a deceased person to contest the distribution of the deceased’s estate as opposed to what is outlined in the will. It usually occurs when spouses or children feel that the will was drafted in an unfair manner. 

This claim seeks to protect the interest of spouses and children of a deceased person. In Canada, including the province of British Columbia, spouses and children of a deceased person can contest the will if they believe the deceased did not make adequate provision for them.

Fairness and equity are the goals of the Wills Variation Claim. It aims to provide proper maintenance and support for family members of a deceased person.

If you’ve been curious about the process of a Wills Variation Claim, we will talk all about it in this article. We will highlight the time for challenging a will and how to navigate the limitation period. 

At the end of this article, you will have a comprehensive overview of the time constraints associated with challenging a will and the importance of timely action.

At Onyx Law Group, we have a reputation based on integrity and competence. With years of experience in family and estate litigation, there is no problem too complex for us to solve. 

Reach out to us now to work with our well-knowledgeable and diverse lawyers in navigating the landscapes of family law. 

Background of the Wills Variation Act in British Columbia

Background of the Wills Variation Act in British Columbia

The Wills Variation Act in British Columbia traces its origins back to earlier legislation designed to address issues around freedom and fairness in the distribution of estates. There were other provisions before this claim like the Testator’s Family Maintenance Act. 

The Wills Variation Act came to limelight in 2009. It became a part of the Wills, Estates and Succession Act (WESA). Its aim is to modernize laws relating to wills and estates. 

Key Provisions of the Act

This act came into force for reasons like: 

Ensuring Adequate Provision

The act aims to ensure that the will of a deceased person makes adequate provision for their spouse and children. If deemed inadequate, the court has the right to vary the distribution of the will maker’s estate. 

Balancing Testamentary Freedom and Family Obligations

This act seeks to strike a balance. While an individual has freedom to structure their will the way they like, there is also a need to ensure that it provides support for family members. 

How the Act Differs From Similar Laws in Other Jurisdictions 

How the Act Differs From Similar Laws in Other Jurisdictions 

Some ways in which the Wills Variation Act stands out are: 

Inclusivity

The act recognizes common-law spouses on equal grounds with married spouses. This shows modernization and the changing nature of family structures. 

Broad Court’s Opinion

The court has the right to use its discretion in varying the distribution of the estate. Thus, the court uses a wide range of factors unique to each case. This makes the process more flexible.

Who Can Apply Under the Wills Variation Act?

The people who can dispute claims are: 

Spouses: It could be a legally married spouse or a common-law spouse. The act is inclusive and recognizes both types of spousal relationships. 

Children: Biological and adopted children of the will maker are eligible claimants under the act. Stepchildren and other dependents may also be considered, depending on the circumstances. 

Legal Criteria for Varying a Will 

Legal Criteria for Varying a Will 

Some of the various factors the supreme court considers in varying a will are: 

Financial Need: The claimant must establish a genuine financial need for additional provision from the estate. It could be giving proof of inadequacy to meet basic living expenses. 

Size of the Estate: The court considers the overall value of the will maker’s estate. There would be more provisions and assets available for distribution if it’s a larger estate. 

Moral Obligations: The court also considers moral obligations of the will maker towards the claimant. It could include level of dependency and if any promises were made by the will maker.

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?

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.

Conduct of Defendants Prevented Them From Relying On The Limitation Period

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 defense to the claim because of their own conduct.

Take Home Point On The Limitation Period For Bringing A Will 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.

Contact us today to handle dispute and claims on wills and real estate. We are here to handle all your legal stress.

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