What is the time limit for contesting a will in BC?
In British Columbia, spouses and children can hire an estate lawyer apply to court to vary the terms of a deceased person’s will, but here is a time limit for contesting a will (often referred to as the “limitation period”). The limitation period is generally 180 days or approximately six months, from when the grant of probate was issued by the court. During this time, a spouse or child of the will-maker can initiate a wills variation claim if they feel they were not adequately provided for in the will.
Section 60 of the Wills, Estates and Succession Act of BC states:
- Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
Section 61 states in part:
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(1) A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless:
- (a) the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,
- (b) a copy of the initiating pleading has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (a) unless the court, before or after the expiration of the 30 days, extends the time for service, and
- (c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading has been served on the Public Guardian and Trustee.
While the 180-day time limit is typically enforced by the courts, there are certain circumstances that can affect the limitation period for contesting a will. An extension or modification to the timeline may be allowed for the following reasons:
Delayed knowledge of the Will:
If a spouse or child of the will-maker was not aware of the existence of the will, the limitation period may start from the date they discovered or could reasonably have discovered the existence of the will. Similarly, if an individual is prevented from obtaining crucial information or evidence necessary for contesting the will within the standard limitation period, the court may consider making modifications to the timeline.
Fraud, forgery, or misrepresentation:
If you suspect fraud, forgery, or misrepresentation in relation to a will and believe it has affected your ability to contest the will within the limitation period, an extension may also be considered at the discretion of the courts.
Capacity issues:
If you believe that the will-maker lacked the mental capacity to understand the nature and consequences of making a will, this may also constitute reasonable grounds for an extension of the limitation period. Under these circumstances (if accepted by the court), the 180-day time limit could instead start from the date you became aware of the capacity concerns.
It is important to note that you will need to provide sufficient evidence to support any of the above claims before the court would even begin to consider making an exception to the standard limitation period.
Hire someone who knows:
If you are considering contesting a will in BC, you must be aware of and comply with the standard limitation period. Otherwise, you may lose the ability to challenge the will in court. If you believe you have grounds to contest a will, it is highly recommended to seek advice from an experienced estate lawyer in British Columbia as soon as possible. Each case is unique, and an estate lawyer will be able to guide you through the legal process taking your individual circumstances into account.
If you are interested in speaking to someone about disputing the terms of a will, please see here: https://westcoastwills.com/estate-disputes/
Book in with an estate lawyer in Vancouver, Burnaby, North Vancouver or Squamish today.
