Wills Variation in B.C.

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.

What is Wills Variation?

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.

How Do You Vary a Will?

A Wills Variation lawyer will require the following information:

A copy of the will (if one is available)
Details regarding probate, including the date of grant of probate
Details of the estate assets and disputed sums
Details of the other beneficiaries.

Key factors may include:

The relationship between the spouse or child and the deceased Will Maker
Any promises made
Any wrongdoing on the part of the spouse or child
The type of support given by the Will Maker to the party applying to vary the will, during an individual’s life
The size of the estate
The needs of the spouse or child

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.

Time Limitation for Starting Will Dispute Claims

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.

Are Limitation Periods for Claims Ever Extended?

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.

Contact an Experienced Wills Variation Lawyer

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 timlouis@timlouislaw.com for a free, confidential case evaluation.