Estate Disputes in BC: The Main Types of Claims and Where to Start

When a family member dies, disagreements about the will, the executor or particular assets are common. In British Columbia most estate disputes fit one of a few categories, and knowing which one you are in tells you which rules and deadlines apply.

This article is a map rather than a manual. It outlines the main types of claims, the procedural tools that can protect your position early, and where to read more.

1. Claims that the will is unfair: wills variation

Section 60 of the Wills, Estates and Succession Act (WESA) allows the court to vary a will that does not make adequate provision for the proper maintenance and support of the will-maker's spouse or children. Only a spouse or child can bring this claim, and the court can order whatever provision it thinks adequate, just and equitable.

The deadline is strict. Under section 61, the claim must be started within 180 days from the date the representation grant is issued in BC, and the executor must be served no later than 30 days after that period ends unless the court extends the time for service. We explain this claim in detail in left out of a will in BC? The 180-day window to contest it.

2. Claims that the will is not valid

A different type of dispute says the document should not be treated as the will at all. Common grounds include:

• Formal defects: the will was not signed and witnessed as section 37 requires.
• Lack of capacity: the will-maker did not have the mental capacity to make a will when it was signed.
• Undue influence: someone used a position of influence to coerce the will-maker. Under section 52, if a challenger shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the person defending the will must show that undue influence was not used.
• Suspicious circumstances or lack of knowledge and approval, for example where a beneficiary arranged the will.

If a will is set aside, an earlier will may apply, or the estate may pass under the intestacy rules.

3. Claims that a document should count, or a will should be corrected

Some disputes run the other way. Section 58 lets the court order that a document, record or marking be effective as a will, or as a change to or revocation of a will, even though it does not meet the formal rules, if it represents the deceased's intentions. Section 59 allows the court to rectify a will that fails to carry out the will-maker's intentions because of an accidental slip or omission, a misunderstanding of instructions, or a failure to carry out instructions. An application to rectify must generally be made within 180 days from the date the grant issues, unless the court gives leave.

4. Disputes with or about the executor

Beneficiaries and executors disagree about delay, information, fees, the sale of assets and the final accounts. Section 158 of WESA allows a person with an interest in the estate to apply to remove a personal representative, or to pass over someone entitled to become one, where the court considers they should not continue or be appointed. The listed examples include refusing to act without renouncing, being unresponsive or unreasonably refusing to carry out the duties to an extent that hampers efficient administration, and having been convicted of an offence involving dishonesty.

Part 25 of the Supreme Court Civil Rules also deals with an executor's remuneration and the passing of accounts (Rule 25-13), which is often where disputes over fees and expenses are resolved. Our article on your rights as a beneficiary in BC covers what you are entitled to know along the way.

5. Disputes about assets outside the will

Joint bank accounts, a home held in joint tenancy with one child, and registered plans or insurance with named beneficiaries can all pass outside the will. Disputes arise when other family members say the surviving owner or named person was meant to hold the asset for the estate. In Pecore v. Pecore, the Supreme Court of Canada confirmed that where a parent transfers property for no payment to an adult child, the law generally presumes the child holds it in trust for the parent, unless the evidence shows the parent intended a gift. These claims turn on evidence of what the deceased intended.

Where to start: protect your position early

Timing often decides which tools are available. Two procedures in Part 25 of the Supreme Court Civil Rules are designed for the period before a grant issues:

• Notice of dispute (Rule 25-10). A person entitled to notice of the probate application, or who claims under a prior or later will, may file a notice of dispute to oppose the grant. While it is in effect, the registrar must not issue the grant. It lapses one year after filing unless renewed, withdrawn or removed by the court, and the court can remove it if the filing is not in the best interests of the estate.
• Citation (Rule 25-11). If someone named as executor is not applying for probate, a person interested in the estate can serve a citation requiring them to apply or take other steps within a set time.

After the grant issues, the 180-day clocks under sections 59 and 61 start to run. Other claims have their own limits. Because deadlines differ by claim, the first useful step is to identify which type of dispute you have and when the grant issued or is likely to issue.

Practical first steps

• Get a copy of the will and any earlier wills, if you can.
• Find out whether a probate application has been filed or a grant has issued, and when.
• Write down what you know about the will-maker's health, who was involved in making the will, and any joint assets.
• Keep communications with other family members calm and in writing.

Many estate disputes settle, often through negotiation or mediation, but a settlement is easier to reach when each side understands its legal position and the timelines.

In an estate dispute? Find out which claim fits and what the deadlines are

Our probate and estate lawyers can review the will and the facts, explain which claims and procedures may apply, and help you take the first steps or respond to a claim.

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