Challenging a Will in BC: Who Can Contest, What the Courts Consider, and Why Time Matters

Being left out of a will, or feeling that the distribution is unfair, can be one of the most difficult experiences a family goes through. In this episode of FH&P Lawyers Law Talk, Clay Williams sits down with Darren Kautz, practice lead for estate litigation at FH&P Lawyers, to talk about who has the right to challenge a will in British Columbia, what factors the courts will consider, the strict time limits that apply, and the evidence you need to bring forward if you think you have been treated unfairly.

Why should you have a will in the first place?

One of the things that people love to talk about are taxes, and one way to talk about them is to not pay them. The reason to start with taxes is because of what happens if you do not have a will in BC. The government is going to come after you and try to take some of your money from the estate.

If you do not have a will, the government can take a percentage of your estate. As an example, if it is between 25 and $50,000, it can be up to 0.6% of that amount. If it is beyond $50,000, it can go up to 1.4% on anything above it. It can escalate quickly. A simple way to get around that is to come into FH&P Lawyers and have us draft your will.

How expensive is it to have a will drafted?

Wills are not expensive things, for the most part. Our firm can quickly and efficiently get you a will and also help you register it so that it goes into the public registry. It is as simple as getting even a basic will, just something that sets out what your intentions are for later in life if something happens to you and if you want to give your family any money.

Who can actually challenge a will in BC?

That is always a good starting point: who has standing. The courts will often want to hear this as well at the beginning. In British Columbia, standing is set out by our legislation. Simply put, it is a spouse, a child, or an adopted child. Those are really the only people who can seek to vary a will if, at some point, you find out that there has not been a fair distribution.

Step kids are not legally entitled to vary a will in British Columbia under the legislation. They have to be formally adopted. Surprisingly, a lot of step kids do come into the office and say they have been cut out while the biological children have been included in the will. Unfortunately, there is nothing we can do to assist them in that situation.

What does the law consider "fair" when it comes to a will?

What is fair is dealt with by our courts. Our courts have grappled with this over the last multiple decades and set out case law as to what is essentially fair. The court has set out the test, and the test is: does the will make adequate, just, and equitable provision for the proper maintenance and support of the will maker's spouse or children.

What factors does the court consider when deciding if a will is fair?

The court can consider many factors, including:

• The size of the estate. If you have only two children and one child gets a large life insurance policy, while the other child only gets $50,000 under the estate, it may still be fair. It depends on how big the estate is.

• The relationship between the deceased and the claimants.

• The needs and means of the claimants. Does someone have a disability, for example, that might require more maintenance?

• The relative treatment of the beneficiaries. The courts will look at how the family members were treated and how the deceased was treated by them prior to passing.

• Contributions by the deceased during their lifetime. If they gave one of the children a large sum of money while they were alive, the courts can consider that.

• Misconduct or poor character. Were you actually mean to the deceased at some point in a way that would cause them to purposely cut you out?

• Estrangement or neglect. How long have you not seen the person who cut you out of the will? Have there been extensive gifts or benefits given?

These factors are non-exhaustive. The court is not going to listen to a full background history of your family, but a lot of narrative does come into play.

Does the financial situation of the beneficiaries matter?

Just because you do not need the money is not an exclusion. A lot of times, someone will come in and say, "John has done so well for himself, and he has got his business," and that the other sibling needs the money more. That is something the court can consider, but it is not a prerequisite by any means. The courts will still look at the testator's wishes. If the testator said they wanted a 50/50 split, even though John has done well, that is likely what the courts will respect. The same applies if the will gives 77% to one child and the other does not need the money. There still could be a change, but the testator's wishes carry weight.

How long do you have to challenge a will in BC?

You have 180 days. That is the strict time limit, and it usually runs from probate or the grant of administration. Essentially, that means once you get into court and formalize the estate.

Most people do not know when probate happens. You are technically supposed to be told about it. The executor is supposed to tell people who are in the will, as well as people who should be notified. Spouses and children, even if they have been cut out of the will, still have an obligation to be notified. But that does not always happen. Our recommendation is that once someone has passed away, talk to your family, get a copy of the will, and if there is an issue you see, deal with it right away.

Can the 180-day deadline be extended?

No. If you miss that limitation period, the courts and lawyers cannot do anything. It is a hard and fast stop. A lot of times, there can be extensions and going to court to say you were not aware or you missed it, but the legislation is very clear. It is a hard and fast stop on the limitation period. Contact us as soon as you have problems.

What evidence do you need to bring forward when challenging a will?

After we get through the questions of standing, fairness, and timing, the next point is often: what are the assets? We will want to get into bank accounts, benefit plans, life insurance plans, personal effects, and real estate, both in BC and outside of BC. That last point makes a difference.

Some of those things do not flow through the estate. A life insurance policy, for example, might not go through probate if there is a designated beneficiary. But it is important to know about it because we want to see what assets have passed from the deceased. When we are talking about fairness, we can understand if John received, say, a $1 million life insurance policy while another beneficiary only received $200,000 from the estate.

What is the key takeaway for someone who thinks they have been unfairly left out of a will?

See your lawyer as soon as possible once a loved one has passed away. Time is short, the legislation is strict, and the sooner you talk to a lawyer, the more options you will have.

Get advice early

If you have been left out of a will, or believe the distribution is unfair, the 180-day deadline runs faster than most people realize. Getting legal advice early can protect your rights and give you a clear picture of what options are available. Reach out to us for a consultation, and we can help you understand your next steps.

Disclaimer: This material is provided for informational purposes only and should not be construed as legal advice on any subject matter. Consult with a qualified lawyer for advice on specific legal issues.