Time Limits for Bringing a Wills Variation Act Claim

A spouse or child who wishes to make a claim seeking to vary a will under the Wills Variation Act, RSBC 1996, c. 490, must file a claim “within 6 months from the date of the issue of probate of the will in British Columbia….” (See s. 3.)

I am of the view that a person may make the application before probate is issued. In some circumstances an executor is able to administer an estate without a grant of probate, and it would make little sense if a spouse’s or child’s right to apply is affected by whether the executor applies for probate. Nor should a claimant have to go through the process of citing an executor to apply for probate. I am not aware of any cases directly on point, but I have brought claims before a grant of probate has been issued without objection.

The Wills Variation Act does not contain any provisions extending the six-month limitation period. For example, in contrast to the provisions of the Limitations Act,RSBC 1996, c. 266, there are no provisions extending the six-month limitation period for minors or incapacitated persons.

However, once one person has brought a claim within the six-month limitation period, section 4 provides that the court may treat the action as an action on behalf of all persons who might apply. In other words, it may be possible for others who wish to make a claim to join in after the six-month limitation period has expired, if someone has started the lawsuit within the six-month period.

In Chan v. Lee Estate, 2004 BCCA 644, the British Columbia Court of Appeal held that because the defendant brothers had led their sisters to believe that they would the brothers would address the imbalance in their father’s will and estate plan after the estate was settled, and the brothers failed to give their sisters notice of their application for probate, the brothers were not entitled to rely on the limitation period defense. The sisters were successful in their claim despite the fact that they did not bring it within the six-month period.

In another case, Shaw v. Reinhart, 2004 BCSC 588, Mr. Justice Shabbits allowed the Plaintiff common law spouse to amend her claim to seek to have the grant of probate rescinded. The executors had not given her notice that they were applying for probate, and they swore an affidavit stated that the deceased did not have a common law spouse. Accordingly, the Plaintiff was not aware that a grant of probate had been issued. The court did not decide whether the grant should be rescinded, but Mr. Justice Shabbits reasoned that if the probate were rescinded, the limitation period would not begin to run until another grant of probate is issued.

Despite these cases, in most circumstances anyone who waits until after the end of six months to file their claim does so at his or her peril. Except in unusual circumstances, the six-month limitation period is strictly applied.

[See my other posts on the Wills Variation Act:
"Wills Variation Act: An Introduction"here;
"The Wills Variation Act: Who May Apply?" here;
"The Wills Variation Act: What is Adequate, Just and Equitable? here;
"Wills Variation Act: A Summary of the Principles" here.]