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Few things are more difficult for a family than losing a loved one. When that loss is followed by a dispute over the person’s will, the grief can quickly become complicated by confusion, frustration and, sometimes, long-standing family tensions.
Maybe a child has been left out of the will. Maybe a sibling believes the deceased was pressured into changing their estate plan. Or perhaps the most recent will looks completely different from an earlier version.
Whatever the circumstances, hearing that a family member is “challenging the will” can be unsettling for everyone involved.
So, what actually happens when someone challenges a will in British Columbia?
The answer depends on what is being challenged. There is an important distinction between questioning the validity of a will and asking the court to change how an estate is distributed.
Here is what families should know.
What Does It Mean to Challenge a Will in BC?
“Challenging a will” is a broad term. In British Columbia, a person may challenge a will for a number of different reasons.
For example, someone may argue that:
These are not all the same type of legal claim, and the evidence required to establish each one can be very different.
Under British Columbia’s Wills, Estates and Succession Act (WESA), the court also has specific powers to address deficiencies in a will and, in certain circumstances, to vary the distribution of an estate.
Step 1: Determine What Is Actually Being Challenged
Before anyone starts talking about a lawsuit, the first question is: what exactly is the family member objecting to?
There are generally two broad categories of disputes.
Challenging the validity of the will
A person may argue that the will should not be accepted as the deceased’s valid last will and testament.
This could involve allegations that the deceased:
The circumstances surrounding the preparation and signing of the will can become very important.
For example, who arranged the appointment with the lawyer? Who was present when instructions were given? Was the deceased experiencing significant health or cognitive difficulties? Did the deceased understand who their beneficiaries were and what they owned?
These questions can become central to a will challenge.
Asking the court to vary the will
A different situation arises when the person accepts that the will is valid but believes the distribution is unfair.
In British Columbia, WESA permits a spouse or child (biological or adopted, but not stepchild) of the deceased to apply to the court where a will does not make adequate provision for their proper maintenance and support. The court can order a different provision if it considers that to be adequate, just and equitable in the circumstances.
This is commonly referred to as a “wills variation claim”.
Importantly, being unhappy with an inheritance does not automatically mean that a will can be changed. The circumstances of the deceased, their relationship with their spouse and children, their reasons for making the gifts they did, and the overall circumstances of the estate can all be relevant.
Step 2: Gather the Evidence
Once a dispute arises, the next step is usually to determine what evidence exists.
This is often where things become much more fact-specific.
A lawyer may want to review:
For example, if a parent changed their will shortly before their death and significantly altered the inheritance of one child, the circumstances surrounding that change may become particularly important.
On the other hand, if the deceased had been discussing the change for years and there is clear evidence explaining their intentions, that may tell a very different story.
The goal is not simply to determine whether the will looks unfair. It is to understand the circumstances in which the will was made and whether there is a legal basis for challenging it.
Step 3: The Executor May Need to Respond
The executor is responsible for administering the estate according to the law and the terms of the will.
When a dispute arises, the executor may find themselves in an uncomfortable position, particularly if they are also a beneficiary or a family member.
An executor should avoid taking sides in a family dispute simply because they have their own opinion about what the deceased “would have wanted.”
Instead, the executor’s role is to administer the estate properly and respond appropriately to the legal claim.
Depending on the circumstances, the estate may need to retain a lawyer to advise the executor and assist with the administration of the estate or litigation.
Step 4: The Dispute May Become a Court Proceeding
Not every will dispute ends up in a courtroom. In many cases, the parties may be able to resolve the dispute through negotiation or mediation.
This can be particularly valuable in estate disputes because the people involved are often family members who will have to live with the consequences of the dispute long after the legal matter is over.
If an agreement cannot be reached, however, a court proceeding may be necessary. The litigation process can involve exchanging pleadings and evidence, obtaining relevant records, questioning witnesses, and ultimately asking the court to determine the outcome.
And this is one reason why it is important not to treat a will dispute as simply a disagreement between family members. Once legal rights are involved, there are procedural requirements and deadlines that need to be taken seriously.
There Are Strict Time Limits for Wills Variation Claims
If the dispute involves a claim to vary a will under WESA, timing is particularly important.
A proceeding under the wills variation provisions generally must be commenced within 180 days from the date the representation grant is issued in British Columbia. There are also specific requirements concerning service of the proceeding on all interested parties.
If you believe you may have a claim involving a will, it is therefore important to obtain legal advice early rather than waiting until the estate has been administered or distributed.
Other types of estate claims can have different procedures and limitation periods, so it is important to identify the nature of the claim at the outset.
What Happens to the Estate While the Dispute Is Ongoing?
One of the biggest concerns for executors and beneficiaries is what happens to the estate while a dispute is underway. The answer depends on the circumstances and the nature of the claim.
A dispute does not necessarily mean that absolutely nothing can happen with the estate. At the same time, an executor should be cautious about distributing estate assets while there is a legitimate claim that could affect beneficiaries’ entitlements.
In certain circumstances, the court has the power to suspend or restrict aspects of estate administration. WESA also provides mechanisms that can protect property from being distributed while a claim is being addressed.
This is another reason why executors should obtain legal advice before making significant distributions when a will is being challenged.
What If the Will Has a Technical Problem?
Not every problem with a will means that the entire will is invalid.
British Columbia’s legislation gives the court certain powers to address deficiencies in wills.
For example, under section 58 of WESA, the court may, in appropriate circumstances, cure deficiencies in a document that does not comply with the formal requirements for making a will if the court is satisfied that the document represents the deceased’s testamentary intentions.
Similarly, section 59 allows the court to rectify a will in certain circumstances where, for example, an accidental error, misunderstanding or failure to carry out the will-maker’s instructions means that the document does not accurately reflect their intentions.
In other words, a technical problem does not necessarily tell the whole story.
The court will look at the circumstances and the evidence to determine what should happen.
What About Family Members Who Were Left Out of the Will?
Being excluded from a will does not automatically mean that the will is invalid.
However, if the person excluded is the deceased’s spouse or child, there may be circumstances in which they can bring a claim under the wills variation provisions of WESA.
The court can consider evidence about the deceased’s reasons for making or not making particular gifts. WESA specifically allows the court to consider evidence of the will-maker’s reasons, including a written statement signed by the will-maker.
This is one reason thoughtful estate planning can be so valuable.
If there are difficult family circumstances, an estate plan should not simply distribute assets. It should also, where appropriate, create a clear record of the will-maker’s intentions and the reasons behind important decisions. Alternatively, a person may want to consider using a trust to distribute assets to avoid a wills variation claim.
Can a Will Challenge Be Avoided?
While it is impossible to guarantee that no one will ever challenge an estate, good estate planning can reduce the risk of a dispute and make the deceased’s intentions easier to establish.
Some practical steps include:
Keep your will up to date. Major life changes such as marriage, separation, divorce, the birth of a child, the death of a beneficiary or a significant change in your finances may be reasons to revisit your estate plan.
Work with an experienced estate lawyer. Proper execution and careful documentation can help address potential issues before they become problems.
Think about difficult family dynamics in advance. If you know that a particular decision could surprise or upset a family member, discuss it with your lawyer. There may be steps that can be taken as part of the estate-planning process to reduce the risk of a future dispute.
Document your intentions appropriately. In some circumstances, a lawyer may recommend documenting the reasons behind particular estate-planning decisions.
Review your estate plan periodically. Your will should reflect your current circumstances and intentions—not a version of your life from ten years ago.
When a Will Dispute Becomes a Family Matter
A will challenge can bring decades-old family disagreements to the surface. It can leave siblings on opposite sides of a legal dispute and create tension at a time when everyone is already dealing with the loss of someone they loved.
That does not mean every challenge should be avoided. Sometimes a person genuinely has a legal claim that deserves to be heard.
But before launching into a dispute, it is worth understanding what the law actually provides, what evidence exists, what the potential outcome may be, and whether there is a practical way to resolve the issue without a lengthy court battle.
And if you are the person responsible for administering the estate, getting advice early can help you understand your obligations and avoid making a difficult situation even more complicated.
Facing a Will Dispute in British Columbia?
Whether you are an executor dealing with a challenge to a will, a beneficiary concerned about an estate, or a family member who believes a loved one’s will does not reflect their true intentions, the first step is understanding your legal position.
At GBC Law, we help clients navigate estate planning, estate administration, and estate disputes with a practical, people-first approach. If you are facing a will challenge or wills variation claim in BC, we can help you understand what happens next and what options may be available to you.
