Left Out of a Will in BC? The 180-Day Window to Contest It

Discovering that a parent or spouse has left you out of their will, or left you far less than a sibling, is painful, and the first question is usually whether anything can be done. In British Columbia the answer is sometimes yes. The Wills, Estates and Succession Act (WESA) allows a spouse or child to ask the court to vary a will that does not make adequate provision for them.

This article explains who can bring a wills variation claim, what the court looks at, the 180-day deadline that governs everything, and what the right means for executors and for people writing their own wills.

British Columbia is different

In many places a will-maker's freedom to leave property to whomever they choose is close to absolute. BC has long taken a different view. Section 60 of WESA provides that if a will 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 order the provision it thinks adequate, just and equitable in the circumstances out of the estate.

That single sentence is the source of a great deal of BC estate litigation. It does not mean every disappointed relative can rewrite a will. It means a defined group of people can ask the court to look at whether the will-maker met their obligations to them.

Who can apply

Only two classes of people can bring a wills variation claim:

• A spouse. Someone who was married to the will-maker, or who lived with them in a marriage-like relationship for at least two years, and who was still their spouse at death. A spouse who had separated from the will-maker generally cannot claim.
• A child. This includes adult children who are financially independent; the right is not limited to minors or dependants. It covers biological and adopted children. Stepchildren who were never adopted generally fall outside it, however close the relationship.

Grandchildren, siblings, parents, friends and caregivers cannot use section 60, no matter how deserving. Their options, if any, lie in challenging the validity of the will itself, which is a different kind of case discussed below.

What the court weighs

The question is not whether the will is fair in some general sense but whether it made adequate, just and equitable provision for the claimant. In answering it, the courts have long looked at two kinds of obligation the will-maker owed: legal obligations, meaning what the law would have required them to provide for a spouse or dependent child during their lifetime, and moral obligations, meaning what a judicious person in their position would be expected to do for their family, judged by contemporary community standards.

Several things feed into that assessment: the size of the estate, the claimant's financial circumstances and needs, the length and nature of the relationship, contributions the claimant made to the will-maker's life or property, what other beneficiaries received, and the reasons the will-maker gave for the choice they made. A will that explains, in valid and rational terms, why a child was left less is in a stronger position than one that is silent. At the same time, the courts take testamentary autonomy seriously and interfere only to the extent the statute requires.

The 180-day deadline

Here the law is unforgiving. Under section 61 of WESA, a wills variation proceeding must be commenced within 180 days from the date the representation grant, usually the grant of probate, is issued in British Columbia. A copy of the court filing must then be served on the executor within 30 days after the 180-day period ends, although the court can extend the time for service. It cannot extend the 180 days.

The clock runs from the grant, not from the death and not from when you learned of the will. Someone who only discovers the terms of a will months after probate has already lost much of the window. This deadline is also the reason executors in BC must wait before distributing: the 210-day waiting period exists precisely so that any variation claim has surfaced before the estate is paid out.

Other ways a will can be challenged

Wills variation accepts that the will is valid and asks the court to change its effect. A different kind of challenge says the will should never have been admitted at all, because the will-maker lacked the mental capacity to make it, was unduly influenced by someone, did not know and approve its contents, or because the document was not properly signed and witnessed. If such a challenge succeeds, the estate passes under the previous will or under the intestacy rules instead. These cases turn on evidence about the will-maker's health, relationships and the circumstances of signing, and they are open to a wider group of people than section 60.

What this means for three different readers

• If you have been left out: find out whether and when a grant has issued, and get advice in weeks rather than months. Many claims settle without a trial, but only if they are started in time.
• If you are the executor: do not distribute during the waiting period, keep a record of every step, and treat a letter from a spouse's or child's lawyer as the start of a process, not a nuisance.
• If you are writing a will and intend to leave a spouse or child less: it can be done, but it should be done deliberately, with your reasons recorded and with advice on how the estate is structured. A plan that anticipates a claim is far more likely to survive one.

Facing a will that leaves you out, or defending one?

Our probate and estate lawyers advise spouses and children considering a wills variation claim, executors responding to one, and will-makers who want their wishes to hold. The deadline is short, so an early conversation matters.

Call 604-259-2844 or send us a message to arrange a confidential consultation at our Vancouver office.