Time Limits for Advancing a Will Variation Claim

If you are served with any paperwork regarding probate, do not delay any dispute you may have

Under WESA, a spouse and/or child of a testator must commence a legal action to vary a Will within 180 days from the date the representation grant is issued in British Columbia. WESA defines “representation grants” as including grants of probate, administration, resealing, or ancillary grants of probate or administration.

Specifically, section 61 of WESA provides that:

(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 or petition 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 or petition has been served on the Public Guardian and Trustee.

There are good reasons for the short timeframe for commencing the lawsuit and the need to immediately serve the executor. The reason behind this is to ensure that estate is not held up in court for years and there is some certainty given to the executor to distribute money to the beneficiaries. Indeed, distribution can start occurring at 210 days after the grant of probate. That 210 days’ timeline coincides with the 180 days to file a lawsuit and the 30 days to serve the lawsuit on the executor.

There is no provision under WESA for an extension of this time limit. The commencement of an action by one claimant, in so far as this time limitation is concerned, is deemed to be a proceeding for all individuals who may apply.

Note that the 180-day time limit does not apply to claims of unjust enrichment and constructive trust. However, it is important to note that time is usually of the essence as the estate proceeds may well be distributed and no longer available for collection after a successful judgment.

In summary, if you are served with any paperwork regarding probate, do not delay any dispute you may have. Time is of the essence and you need to move quickly on pursuing your legal rights.

WHO CAN APPLY TO VARY A BRITISH COLUMBIAN WILL?