Contesting Unfair Wills: BC’s Wills Variation Act

In British Columbia, you can contest an unfair will under WESA Section 60 if you are a spouse or child of the deceased. You must file within 180 days after probate is granted. The court considers your financial needs, relationship with the deceased, and the will-maker’s reasons for the distribution. Documentation supporting your claim is essential, and tax implications should be considered before proceeding. Understanding the complete legal process will strengthen your position.

Legal Framework: Understanding the Wills, Estates and Succession Act

The backbone of will contests in British Columbia rests on the Wills, Estates and Succession Act (WESA), which came into effect in 2014 to modernize the province’s inheritance laws.

The legal foundation for inheritance disputes in BC lies within WESA, modernizing how estates are contested since 2014.

Section 60 of WESA specifically allows spouses and children to challenge a will if they believe it does not provide adequate maintenance and support.

When you are considering a will variation claim, you should understand that WESA balances two competing interests: the will-maker’s freedom to distribute property as they wish, and society’s expectation that people will provide for their dependents.

Courts evaluate each case individually, weighing the deceased’s reasons for the distribution, the claimant’s financial needs, and what would be considered reasonable in the circumstances.

Eligibility Requirements for Filing a Wills Variation Claim

Under British Columbia law, strict eligibility criteria determine who can file a wills variation claim—a fact that surprises many disappointed beneficiaries or excluded family members.

WESA Section 60 clearly defines who has standing to bring forward such claims, greatly limiting potential claimants.

Only these parties can file a wills variation claim:

• Spouses (including legally married and common-law partners who lived together for at least two years)
• Children (biological or legally adopted, regardless of age)

Stepchildren and other relatives, even if financially dependent on the deceased, cannot file.

If you are considering contesting a will, first confirm your eligibility status. Courts will not entertain claims from ineligible parties, regardless of how unfair the will’s provisions might seem or how close your relationship was with the deceased.

The 180-Day Deadline: Why Timing Matters

When contemplating a wills variation claim in British Columbia, you must understand that strict time limits apply—perhaps the most critical deadline being the 180-day filing window.

This period begins from the date when the estate grant (probate or administration) is issued, not from the date of death or when you discovered the will’s contents.

Missing this deadline can be devastating to your claim, as courts rarely grant extensions.

Once the 180 days expire, you permanently lose your right to contest the will under WESA.

It is important to consult with an estate litigation lawyer as soon as possible after learning about a potentially unfair will.

Do not wait until the last minute—gathering the necessary documentation and preparing your case requires time.

Required Documentation for Your Claim

Properly preparing for a wills variation claim requires assembling thorough documentation to support your case before you file with the court.

The strength of your claim often depends on the quality and completeness of your evidence, which demonstrates both your relationship with the deceased and your financial circumstances.

Evidence quality can make or break your wills variation claim—document both your relationship and financial needs thoroughly.

Essential documents you will need include:

• The deceased’s will and any grant of probate or administration issued by the court
• Financial records showing both your needs and the deceased’s assets, including property valuations, bank statements, and tax returns
• Evidence of your relationship with the deceased, such as correspondence, photographs, or witness statements

Organizing these documents chronologically can help your lawyer build a compelling narrative that demonstrates why the current will provisions fail to meet the “adequate, just, and equitable” standard required by law.

The Court Process: From Filing to Resolution

The court process for a wills variation claim follows a structured pathway that transforms your documentation into legal action. Once you have filed your Notice of Civil Claim, you will enter a procedure designed to either reach a settlement or proceed to judgment.

Stage	Timeline	Key Actions	Considerations
Filing	Within 180 days of probate	Submit claim to BC Supreme Court	Missing deadline forfeits rights
Discovery	2-6 months	Exchange documents, attend examinations	Be transparent about all relevant facts
Mediation	Before trial	Negotiate with other parties	Often resolves claims without trial
Trial	If needed	Present evidence, witness testimony	Judge determines final outcome

The process can be lengthy, typically taking 12-24 months from filing to resolution, though mediated settlements can greatly reduce this timeframe.

Moral and Legal Obligations of BC Testators

Although bequest freedom allows individuals to distribute their assets as they wish, British Columbia law recognizes that this freedom is not absolute. Under the Wills, Estates and Succession Act (WESA), testators must fulfill both legal and moral obligations to their spouses and children. The courts can vary a will if it fails to provide “adequate, just, and equitable” provisions.

While you have the right to decide who inherits your assets, BC law limits this freedom to protect family members.

Your obligations as a testator include:

• Legal duty to provide proper maintenance and support for dependents
• Moral duty that extends beyond minimum legal requirements, especially for long-term spouses
• Consideration of what would be reasonable if the family relationship ended through divorce rather than death

Courts balance your testamentary autonomy against these obligations, with spousal claims typically receiving stronger consideration than adult children’s claims.

How Courts Determine “Adequate, Just, and Equitable” Provisions

When BC courts evaluate wills under WESA Section 60, they apply a well-established framework to determine what constitutes “adequate, just, and equitable” provisions for claimants.

Following the landmark Tataryn v. Tataryn Estate case, judges conduct a two-stage analysis: first examining if the will adequately provides for the claimant’s maintenance and support, then determining what would be appropriate if it does not.

Courts balance multiple factors, including the deceased’s intentions, the size of the estate, the claimant’s financial needs, and the nature of their relationship.

The legal obligation to support spouses typically carries more weight than obligations to adult children. Judges also consider what the claimant might have received under family law if the relationship had ended through separation rather than death, particularly in spousal claims.

The Role of Common-Law Relationships in Wills Variation

Common-law relationships have gained significant recognition in British Columbia’s wills variation landscape, fundamentally changing how courts interpret inheritance rights. If you’ve lived with your partner for at least two years in a marriage-like relationship, you’re considered a spouse under WESA and have the same variation rights as married individuals.

When evaluating common-law claims, courts typically consider:

• Length and nature of your relationship, with longer relationships generally creating stronger moral obligations
• Financial interdependence and contributions to shared assets or your partner’s business ventures
• Evidence of the deceased’s intentions regarding provision for you, including verbal promises or prior support patterns

Courts now regularly uphold common-law partners’ claims to adequate, just, and equitable provisions from their deceased partner’s estate, reflecting society’s evolving understanding of family structures.

Tax Implications of Successfully Contested Wills

Successfully contesting a will through variation claims can trigger significant tax consequences that many claimants don’t anticipate.

As shown in the Ciarniello case, where estate value dropped from $11 million to approximately $7 million after taxes, these implications can substantially affect your final inheritance.

When a court redistributes estate assets, you may face capital gains taxes, especially with property or investment transfers.

The adjusted distribution might also push you into a higher income tax bracket if you receive additional assets that generate income.

Beware of inheritance windfalls that may silently elevate your tax bracket and diminish your claim’s true value.

Additionally, potential tax liabilities on RRSPs, RRIFs, or other registered accounts redistributed through a successful claim require careful consideration.

To maximize your inheritance, work with both an estate lawyer and tax professional when pursuing a will variation claim.

The Executor’s Responsibilities During Contestation

The executor’s role transforms dramatically when a will faces contestation. While normally focused on distributing assets according to the will’s instructions, you must now maintain a neutral position while the claim proceeds through court.

WESA requires you to continue managing estate assets prudently during this period, which may extend for months or even years.

Your key responsibilities include:

• Preserving all estate assets intact until the court renders its decision
• Providing full disclosure of estate documents to all parties involved in the litigation
• Maintaining meticulous financial records of all transactions and expenses

You will need to attend mediation sessions and court hearings as required, and you may be called to testify about the deceased’s intentions or statements regarding their will.

Balancing Testamentary Freedom With Family Obligations

British Columbia law creates a distinct tension between two fundamental principles: a person’s right to distribute their assets as they wish and their obligation to provide for immediate family members.

Under the Wills, Estates and Succession Act (WESA), courts can override a will’s provisions if they do not adequately provide for a spouse or child.

This limitation on testamentary freedom is not absolute. Courts carefully weigh the deceased’s intentions against their moral and legal obligations. They consider factors like the relationship’s nature, financial circumstances, and the estate’s size.

A will-maker can exclude family members but must have valid, rational reasons that courts will respect.

The law fundamentally demands that you fulfill certain family obligations first before exercising complete freedom in your estate planning.

How Vest Estate Law Can Help

When facing the complexities of contesting an unfair will, Vest Estate Law offers specialized expertise to guide you through the entire process.

As a boutique firm dedicated exclusively to wills and estates law across Alberta and BC, we recognize the nuanced legal framework that governs wills variation claims.

Our team can assist you with:

• Determining your eligibility to contest a will and evaluating the strength of your claim
• Gathering necessary documentation and filing your claim within the critical 180-day deadline
• Representing your interests through mediation, settlement negotiations, or court proceedings

Do not navigate this challenging legal landscape alone.

With Vest Estate Law, you will work with lawyers who focus solely on estate matters and excel at litigation when necessary to protect your rightful inheritance.

Frequently Asked Questions

Can a Will Be Contested if the Testator Was Mentally Competent?

Yes, you can contest a will in BC even if the testator was mentally competent. Spouses and children can file variation claims under WESA if provisions are not adequate, just, and equitable.

How Are Gifts Made Before Death Considered in Variation Claims?

Gifts made before death (inter vivos transfers) can be considered when evaluating overall fairness. You will need to demonstrate they were intended to deplete the estate to avoid claims.

Can Disinherited Children Reconcile With Parents and Still Contest Wills?

Yes, you can reconcile with your parent before their death and still contest their will if you have been disinherited or inadequately provided for under BC’s WESA legislation.

How Do Courts Handle Competing Claims Among Multiple Children?

Courts weigh each child’s relationship with the deceased, their financial needs, prior gifts received, and any special circumstances. They will endeavour for fairness while respecting the testator’s intentions when valid reasons exist.

Are Foreign Assets Included When Considering Estate Adequacy?

Foreign assets are generally included in evaluating estate adequacy. Courts consider your global estate when determining if you have made adequate provision for dependents under BC’s wills variation law.

Conclusion

If you are facing an unfair will in BC, do not delay. You have only 180 days to contest under WESA, which uniquely prioritizes family welfare over inheritance freedom. Your claim must demonstrate both legal and moral obligations were not met. Consult with an experienced estate lawyer immediately to navigate this complex process and secure the fair inheritance you deserve.