Contesting a Will in BC: Grounds, Deadlines, and What to Expect

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If you’re thinking about contesting a will in BC, you’re likely dealing with a situation that feels unfair or doesn’t add up.

Luckily, the law in BC does provide ways to challenge a will, but only in specific circumstances, and within strict time limits.

What Does It Mean to Contest a Will?

When people say they want to “contest a will,” they usually mean one of two things:

  1. They want to invalidate or set aside the will; or
  2. The will is unfair and they want to change how it distributes the estate assets.

These are very different claims. They involve different legal tests, different evidence, and sometimes very different outcomes.

Technically, a will can be perfectly valid and still be changed by the court.

Who Can Contest a Will in BC?

This is usually the first question, and the answer depends on what kind of claim you’re bringing. 

Not everyone who feels wronged by a will has the legal right to challenge it.

Wills Variation Claims (Unfair Wills)

If the concern is that the will is unfair and that the distribution of estate assets should be changed, only certain people can bring this claim.

Under BC law, that group is limited to the deceased will-maker’s:

  • Spouse (legally married or living in a marriage-like relationship for at least 2 years), and
  • children

That includes:

  • adult, independent children, either biological or adopted (you do not need to be financially dependent), and
  • maybe even stepchildren – particularly where there was a parent-child-like relationship

People are often surprised (and sometimes annoyed) by how broad this is. It is not unusual for financially independent adult children (even those who had a distant relationship with their parent) to successfully vary a will.

At the same time, however, if you are not a spouse or child, you cannot bring this type of claim no matter how unfair the will may seem. In many cases, this threshold issue of standing will need to be confirmed via DNA testing (in the case of a child) or an analysis of whether the relationship between the will-maker and the claimant was marriage-like in the two years leading up to the will-maker’s death (in the case of a spouse). 

Validity Challenges (Is the Will Valid?)

If the issue is whether the will is legally valid (e.g. whether it was executed by a person who had testamentary capacity and was not unduly influenced) the group of potential claimants is wider.

Generally, anyone with a financial interest in the outcome may be able to challenge the will, including:

  • beneficiaries under the current will
  • beneficiaries under a prior will
  • individuals who would inherit if there were no will

The key question is whether you would stand to benefit if the will is set aside. If so, then you likely have standing to challenge the will.

Grounds for Contesting a Will

Undue Influence

This is one of the most common concerns and one of the hardest to prove.

The question is whether someone overpowered the will-maker’s free will.

In practice, courts look for patterns like:

  • dependency on a person
  • isolation from other family members
  • a sudden or drastic change in the estate plan that benefits the same person, usually done in secret
  • that person’s involvement in the will-making process

We often see allegations of undue influence in estate disputes.  The chance of success of such a claim depends greatly on the available evidence showing dependency and control.

Lack of Testamentary Capacity

A will-maker must understand what they’re doing when they make a will. That includes:

  • what a will is
  • what they own
  • who might expect to benefit

A will-maker also need to be free of “delusions” that influenced the disposition of their assets under the will. For example, a will-maker may be found to lack testamentary capacity if they disinherited their child based on an irrational and false belief that the child had broken a promise to them.

Capacity issues tend to arise later in life, when the elderly will-maker has dementia, cognitive decline, or serious illness. 

In practice, these cases often turn on documents:

  • medical records
  • the drafting lawyer’s file
  • notes from the time the will was made

It is important to keep in mind that a diagnosis of dementia is not determinative of testamentary capacity. Often, the most compelling evidence of capacity (or lack thereof) will be found in the drafting lawyer’s file or the testimony of credible and reliable lay-witnesses who observed the will-maker over the relevant period of time.

Lack of Knowledge and Approval

In addition to the requirement that a will-maker be able to understand what they’re doing when they make a will, there is a related requirement that they actually know and approve of what their will says.  Even where a will-maker is generally able to make a will, their will may still be invalid because they do not know and approve of what the will in question says.  Where a will-maker has testamentary capacity, knowledge and approval can still be absent due to some kind of functional barrier (e.g., the will is in a language they do not speak, they suffer from visual impairment and cannot read the will) or perhaps even due to being misled about the contents of the will (e.g., the drafting lawyer did not prepare the will in accordance with the will-maker’s instructions, particularly where the inconsistent terms of the will are buried in dense legalese).

The evidence required to establish a lack of knowledge and approval is often similar to what is required for establishing a lack of testamentary capacity.

Wills Variation (Unfairness)

This is where most successful claims happen.

Even if a will is valid, the court can change it if it does not make adequate or fair provision for a spouse or child.

That doesn’t just mean basic support. BC law recognizes legal and moral obligations to spouses and dependent children, and moral obligations to independent children.

As a result:

  • fully independent adult children can succeed
  • unequal (and sometimes even equal) distributions can be challenged
  • disinheritance is often closely scrutinized

Not every unequal will is unfair, but many are. The courts will order a variation of a will if it finds that the will-maker has not acted in accordance with what a judicious person should do based on contemporary community standards.

Time Limits: This Is Critical

There are strict deadlines for challenging a will.

Wills Variation Claims

You have 180 days from the grant of probate to file.

If you miss that deadline, your claim is very likely gone. 

Validity Challenges

While a two-year limitation period generally applies, it’s best not to wait. It is often advantageous to take immediate action before the executor or anyone else has obtained a grant of probate or administration. Estates can sometimes be administered quickly, and once assets are distributed, recovering them can be difficult.

What Actually Happens When You Contest a Will?

Most estate cases don’t go to trial.

Typically:

  1. The claim is filed
  2. The estate is held back from distribution
  3. The parties exchange their evidence 
  4. There are settlement discussions or mediation
  5. If needed, the matter proceeds to trial

Costs and Risks

Estate litigation can be very expensive. And:

  • costs are generally not paid out of the estate
  • unsuccessful parties can be ordered to pay costs, or even special costs

At the same time, some claims, particularly strong wills variation claims, can result in significant recovery.

So, the real question is not just “Do I have a claim?” – it’s “Is this worth pursuing?”

When Should You Speak to a Lawyer?

You should get advice early if:

  • you are a spouse or a child and you’ve been disinherited or left a small share
  • the will is dramatically different from what you expected
  • someone was heavily involved in the will-maker’s finances
  • there are concerns about capacity or pressure

Early advice can make a significant difference.

Final Thoughts

Not every unfair situation leads to a successful claim. And not every suspicious situation can be proven. But many can.

The key is understanding early on where your situation falls and what the evidence will actually support.

If you’re dealing with a situation like this and aren’t sure where you stand, it’s often worth getting an early initial opinion. We can help you understand your options and whether it makes sense to move forward.

In appropriate cases, we are also prepared to explore alternative fee arrangements, including contingency-based retainers.