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If you have not been adequately provided for in your parent’s or spouse’s will, it may be possible to get a court to vary the Will. In British Columbia, the Wills, Estates and Succession Act (WESA) governs Wills. Even if a Will is valid under the WESA Act, a court will vary the Will if adequate provision has not been made for the Will Maker’s spouse and children.
Wills variation is an opportunity for a surviving spouse or child, including an adult child, of a deceased Will Maker to apply to court for a court order to vary the Will. Some provinces and territories limit claims to children under a certain age; however, in British Columbia, children (natural and adopted), including adult children, can apply to a court to have the deceased Will Maker’s Will varied. Spouses including married spouses,common-law spouses, and spouses of the same gender may also apply to court to have the deceased Will Maker’s Will varied. Under WESA, married couples are no longer considered to be spouses if they have lived apart for at least two years and have both intended to do so as a permanent arrangement. Common-law spouses are no longer considered to be spouses when one or both end the relationship.
In deciding whether to vary a Will, the courts will consider the size of the estate, the relationship claimants had with the deceased, and the financial means of the claimants. The courts will also establish whether they received any gifts outside of the Will (i.e., life insurance policy) or any gifts within the deceased’s lifetime.
A Wills Variation lawyer will require the following information:
Key factors may include:
Several factors play a role in this decision. A wills variation lawyer will work closely with you to determine if there are grounds to pursue a change in the will. Your lawyer must file the Notice of Civil Claim in a BC Supreme Court registry within 180 days of the date of issuance of an estate grant, grant of administration, or resealing grant.
It is essential to understand how long you have to challenge a Will, as there are strict time limitations when submitting a will variation claim. If you miss the deadline, you will lose the opportunity to ask the court to change the way a Will divides an estate.
The time limitation for taking legal action is 180 days (approximately 6 months) from when the grant of probate was awarded. Probate is the process by which the Will is proved valid and legitimately that of the deceased. If a claim is received after the limitation date, the claim is considered statute-barred. Meaning that legal action will no longer be allowed because the time limit has exceeded the timeline.
In most cases, no. Time limitations are strictly enforced by the courts — meaning that you must be aware of the time limitation for the type of claim you want to bring forward and ensure that you file the case within the time limitations. We strongly advise working with a lawyer to ensure you do not miss these crucial deadlines.
Applying to vary a Will is a complex legal procedure. If your deceased parent or spouse has not made adequate provision for you in their Will, we highly suggest you obtain legal advice from an experienced Wills variation lawyer in your province as early as possible. Tim Louis Law is here to help. Contact Tim Louis and his compassionate, trusted team of experts at 604-732-7678 or email firstname.lastname@example.org for a free, confidential case evaluation.
Thank you Tim for taking on our cause. This week we had our first ‘head to head’ with big government and big business. You were so brilliant and forceful at representing our group. I am now looking forward to the battle ahead! Bring it on!
Fern Jeffries, Co-Chair
False Creek Residents Association