A will is meant to reflect a person’s final wishes regarding how their assets will be distributed after death. While many wills are settled without dispute, there are situations where family members, beneficiaries, or other parties with an interest or stake in the estate believe a will is unfair, invalid, or the result of improper influence.
In these cases, the law permits individuals to contest a will. However, a person only has a limited amount of time to bring forth a claim. The Wills, Estates, and Succession Act (WESA) sets the time limit for challenging a will. Missing your deadline can mean losing your legal right to bring a claim forward, no matter how strong your case may be. The time limit to contest a will depends on the type of claim you are making and your relationship to the deceased, which is why understanding these rules is crucial before taking action.
What Is the Limitation Period for Challenging a Will?
As mentioned, how long someone has to contest a will depends on the type of claim they have. One common type is a wills variation claim. These cases occur when a spouse or child believes that the will does not make adequate provisions for them.
Under section 60 of WESA, individuals pursuing a wills variation claim have 180 days (about 6 months) from the date the court issues the grant of probate to file their claim in court. The grant of probate is the court’s formal confirmation that the executor has the authority to begin handling the estate’s affairs per the will.
Importantly, eligible parties do not have to wait for a grant of probate to file a wills variation claim. As soon as the deceased’s spouse or child becomes aware of a discrepancy in the will, they are allowed to begin the contest process.
However, not all will challenges fall under WESA. Another common issue is a will validity contest. These cases raise questions about a will’s validity for one reason or another. Someone can allege:
- The will-maker lacked the necessary mental capacity to write a will.
- The will-maker was under undue influence when creating the will.
- The will was not properly executed according to WESA standards.
- The will itself was forged or is otherwise a fraudulent document.
- The will is ambiguous or includes errors.
Validity challenges are actually governed by the time constraints of BC’s Limitation Act, rather than WESA’s. According to the Limitation Act, these claims must be brought within two years from the date the claimant knew or ought to have known about the grounds for the claim.
Unlike wills variation claims, you do not need to be a spouse or child of the deceased to make a validity challenge. The will’s validity can be disputed by:
- Any beneficiary named in the current version of the will.
- A beneficiary named under a previous iteration of the will.
- A person named in beneficiary designations.
- This is a person legally chosen to receive specific assets, such as a life insurance payout, from the deceased without that asset going through a will or court system.
- Any other party with a financial stake in the estate, such as creditors.
Are There Exceptions to Time Limitation Rules?
In most cases, BC courts are strict about enforcing limitation rules. However, there are a couple of limited exceptions for will variation or validity challenges.
Those filing a wills variation claim may be able to bring a claim after the deadline has passed when:
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- Another claim is already in progress: If another eligible beneficiary started a wills variation claim within the 180 days, you may be able to join in later, so long as a settlement hasn’t been initiated.
- Executor’s misconduct caused delay: While rare, it is possible that an executor or another party misled you or withheld key information, preventing you from filing a timely claim.
- Correcting errors in the will: If the will contains mistakes that clearly don’t match the will-maker’s intentions, the court may give permission to file after the deadline so those errors can be fixed.
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In rare, exceptional circumstances, the court may allow a validity challenge claim to go through after two years. These situations might involve:
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- Discovering important new evidence after the deadline.
- Being seriously ill or incapacitated during the limitation period.
- Not being informed about probate or the estate until it was too late.
- Fraud or concealment by someone involved in the estate.
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What to Know About Freezing Probate
If you believe there is an issue with a will, you may be able to pause the probate process by filing a Notice of Dispute under Rule 25-10 of the British Columbia Supreme Court Civil Rules. This stops the advancement of the estate’s administration and pauses all estate affairs temporarily.
A Notice of Dispute is valid for one year after it is filed, and probate cannot be granted until the notice is withdrawn or removed. These notices provide interested or relevant parties time to resolve disputes or begin litigation within that year.
When to Work With an Estate Litigation Lawyer
If you feel a will is invalid for any reason, it’s important to speak with an estate litigation lawyer as soon as possible. An inheritance can be life-changing, and you want to ensure you receive what you are legally entitled to.
Stephens & Holman is here to help you throughout this process. Our team can evaluate your claim, confirm whether or not probate has been applied for or granted, prepare your case, and protect your right to challenge the will within the proper limitation period. Contact our office today to schedule an appointment or to learn more.