In BC, you can challenge an unfair will under the Wills, Estates and Succession Act if you are a spouse or child of the deceased. You must act within 180 days of probate being granted. Courts consider the deceased’s moral obligations and apply the “Objective Judicious Parent Test” when evaluating claims. Gathering thorough financial records and correspondence is essential to demonstrate unfair treatment. Both mediation and litigation offer distinct paths forward, depending on your circumstances.
Challenging an Unfair Will in BC: Legal Tips
When a loved one passes away and you discover their will does not provide fairly for all beneficiaries, you may have grounds to challenge it under British Columbia law.
The Wills, Estates and Succession Act (WESA) governs inheritance disputes and allows spouses and children to contest unequal distributions.
If you are considering challenging a will, you must act quickly—there’s a 180-day limitation period from the date probate is granted.
First, consult an estate litigation lawyer to evaluate your case. You will need to demonstrate that the will-maker failed to meet their moral obligations to you.
Courts apply the “Objective Judicious Parent Test” to assess whether the distribution is reasonable and fair.
Be prepared to provide evidence of your relationship with the deceased, contributions you made, and your financial circumstances.
Understanding Testamentary Autonomy and Its Limits
In British Columbia, testamentary authority grants individuals the freedom to distribute their assets as they choose after death. This autonomy is protected under the Wills, Estates and Succession Act (WESA), allowing you to divide property unequally among children or even exclude certain family members if you wish.
However, this freedom is not absolute. BC courts can intervene when a will does not adequately provide for a spouse or children. Using the “objective judicious parent test,” courts evaluate whether your distribution decisions meet moral obligations to family members.
While testamentary freedom exists, courts may overrule distributions that fail to meet moral obligations toward family members.
Factors considered include relationships with beneficiaries, estate size, previous financial gifts, and beneficiaries’ circumstances.
If you are planning to distribute assets unequally, you will need legitimate, clearly documented reasons to reduce the risk of successful challenges after your death.
The Wills, Estates and Succession Act (WESA): Your Legal Foundation
The Wills, Estates and Succession Act (WESA) serves as the cornerstone of inheritance law in British Columbia, providing the legal framework that governs how estates are distributed after death.
This extensive legislation balances testamentary autonomy—your right to decide who receives your assets—with the court’s power to intervene when a will fails to adequately provide for spouses or children.
Under WESA, you have 180 days from the granting of probate to challenge a will if you are a spouse or child who feels unfairly treated.
The court will consider various factors, including relationships with the deceased, estate size, and your financial needs.
While will-makers can distribute assets unequally among children, they still have moral obligations that courts may enforce, especially when discrimination or cultural biases influence distribution decisions.
Who Can Contest a Will in British Columbia
Understanding who has legal standing to contest a will forms the bedrock of any successful challenge in British Columbia’s inheritance system.
Under the Wills, Estates and Succession Act (WESA), only specific individuals can bring forward a claim.
In BC, the right to contest a will is primarily limited to spouses and children of the deceased. This includes biological and legally adopted children, but not stepchildren unless formally adopted.
Spouses encompass married partners and those in marriage-like relationships for at least two years before the death.
The law recognizes these individuals’ right to challenge based on the moral duty concept—the obligation of the will-maker to provide adequately for immediate family members.
You will need to file your challenge within 180 days of probate being granted.
The 180-Day Timeline: Critical Deadlines for Will Challenges
When contemplating a challenge to an unfair will in British Columbia, you must be acutely aware of the strict 180-day countdown that begins the moment probate is granted.
This non-negotiable deadline applies to all wills variation claims filed under WESA.
Missing this significant timeframe typically results in your claim being barred, regardless of its merit.
There are limited exceptions, such as when other claims are already filed against the estate or when you were not properly notified about the probate application.
To protect your interests, consult an estate litigation lawyer immediately after learning of an unfair will.
Do not wait until probate is granted to begin gathering evidence and preparing your case, as this preparation period is essential to meeting the 180-day requirement.
Evidence Gathering: Building Your Case for Will Variation
Once you have decided to challenge a will within the 180-day window, successful evidence gathering becomes your next priority. Courts require substantial documentation to evaluate whether the will-maker failed to meet their moral obligations to you.
Focus on collecting financial records, correspondence, and witness testimony that demonstrates your relationship with the deceased.
- Document your contributions – Gather evidence of care provided to the deceased, financial assistance given, or work performed for family businesses that went uncompensated.
- Establish patterns of promises – Collect emails, letters, or texts where the deceased indicated intentions for fair distribution.
- Demonstrate disparate treatment – Compile records showing unequal gifts or support provided to different children without justifiable reasons.
Courts apply the “judicious parent” test when evaluating these claims, so organize your evidence accordingly.
The Objective Judicious Parent Test in Court
The Objective Judicious Parent Test represents a critical legal standard courts use when evaluating will variation claims in British Columbia.
The Objective Judicious Parent Test serves as a cornerstone consideration in BC courts when assessing claims against parental wills.
This test asks what a fair-minded parent would have done in similar circumstances when dividing their estate among children.
As demonstrated in cases like Tom v. Tang, the court examines whether the will-maker fulfilled their moral responsibilities fairly.
Even when legitimate reasons exist for unequal distribution, the court will assess if the division is reasonable and equitable.
If you are challenging a will, you will need to show that the distribution fails this test.
Moral Obligations vs. Legal Requirements in Estate Distribution
Two competing principles shape estate distribution in British Columbia: moral obligations and legal requirements. While you have testamentary autonomy to distribute your assets as you wish, the courts can intervene if your will does not adequately provide for your spouse or children.
Under WESA, the court weighs your decisions against what’s considered adequate, just, and equitable.
- Emotional impact: Children excluded from wills often feel deeply rejected, with psychological wounds that last long after the estate is settled.
- Family fracturing: Unequal distributions frequently tear families apart, creating rifts that span generations.
- Validation concerns: For many claimants, challenging a will is not just about money—it is about seeking acknowledgment of their relationship with the deceased.
Unequal Sibling Distribution: When Courts Will Intervene
When siblings receive dramatically different shares of their parent’s estate, BC courts may intervene to rebalance what they consider unfair distributions. The landmark Grewal case demonstrated this when daughters received only $150,000 each while sons inherited over $4 million each. The court ultimately varied the will to give daughters 60% and sons 40%.
You should know that BC courts apply the “Objective Judicious Parent Test” to assess if a will-maker fulfilled their moral responsibilities to children.
While testamentary autonomy allows parents to divide assets unequally, courts will scrutinize whether the distribution is adequate, just, and equitable.
If you are challenging an unequal distribution, you must file within 180 days after probate.
Mediation vs. Litigation: Choosing Your Path Forward
Deciding between mediation and litigation represents a critical crossroads for anyone who believes they have been unfairly treated in a loved one’s will.
Each path offers distinct advantages and challenges. Mediation provides a less adversarial approach, typically costing less while preserving family relationships. It is confidential and offers more creative solutions than court proceedings.
Litigation, while more formal and potentially divisive, may be necessary when the other party refuses negotiation or when the case involves complex legal issues like undue influence.
Remember, the 180-day limitation period applies regardless of which path you choose, so consult an estate litigation lawyer promptly to evaluate your options.
Best For: Individuals seeking to contest unequal inheritance distributions in British Columbia who value preserving family relationships while still pursuing a fair resolution of their inheritance claims.
Pros:
- Mediation offers a confidential, less costly alternative to litigation that can help preserve family relationships while still addressing inheritance disputes
- The 60-day timeline for mediation is significantly shorter than the lengthy court process, allowing for faster resolution and distribution of assets
- Mediated agreements can include more creative and personalized solutions than court-ordered judgments, potentially addressing emotional factors beyond just financial division
Cons:
- Mediation requires willing participation from all parties, making it ineffective when dealing with combative family members who refuse to negotiate in good faith
- Complex legal issues like undue influence or testamentary capacity may not be adequately addressed through mediation alone
- Without the formal discovery process of litigation, important financial information or evidence of misconduct might remain hidden during mediation proceedings
How Vest Estate Lawyers Can Help
Maneuvering the complexities of will challenges requires specialized legal expertise that general practice lawyers often lack. At Vest Estate Law, our team focuses exclusively on wills and estates law across British Columbia and Alberta, giving us the depth of knowledge necessary to navigate these sensitive disputes effectively.
- Dedicated Expertise – Our boutique firm specializes solely in estate matters, providing you with lawyers who understand the nuances of WESA claims and moral obligations.
- Strategic Guidance – We will help you evaluate whether challenging a will makes financial sense, considering both potential outcomes and emotional costs.
- Comprehensive Support – From gathering evidence and filing within the critical 180-day limitation period to representing your interests in court or mediation, we will stand with you through every step.
Frequently Asked Questions
Can I Challenge a Will if I Receive a Small Inheritance?
You can challenge a will in BC if you’re a spouse or child receiving minimal inheritance. File within 180 days of probate to claim your appropriate share based on moral obligations.
What Happens to the Estate During a Will Challenge?
During a will challenge, your estate remains frozen as the court reviews the case. Assets cannot be distributed, and the executor’s powers are limited until legal proceedings conclude.
How Are Legal Costs Paid When Contesting a Will?
Legal costs for contesting a will are typically paid from your own funds initially. You may recover costs from the estate if successful or be ordered to pay opponents’ costs if unsuccessful.
Can Joint Assets Be Included in a Will Variation Claim?
Joint assets with right of survivorship typically pass outside the estate and are not subject to will variation claims. However, you can challenge these transfers if they were made to intentionally avoid legal obligations.
Will Challenging a Will Damage My Relationship With Other Beneficiaries?
Challenging a will often strains family relationships. You are likely to face resentment, conflict, and damaged trust with other beneficiaries. Consider mediation or family discussions before proceeding with legal action.
Conclusion
You are not powerless when facing an unfair will in BC. With WESA’s provisions, you can challenge distributions that do not meet moral obligations to family members. Remember, you must act within 180 days of probate, so consult an estate litigation lawyer promptly. While the process is demanding, courts regularly intervene in cases of unjust distribution. Your relationship history, contributions, and financial needs all strengthen your claim for fairness.
Our main hub for British Columbia is located in the heart of Vancouver. That said, we serve the entire province of BC. We have the infrastructure to work with any of our clients virtually — even in the furthest regions of British Columbia.
Call (604) 256-7152 [toll free 1 (877) 415-1484] to get routed to the best representative to serve you or contact us online to schedule an appointment.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take and what to expect moving forward.
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Myron Plett
WILLS and ESTATES LAWYER
Myron is a seasoned litigator with nearly twenty years of experience and a broad range of skills that has led to significant successes in the Provincial Court of British Columbia, the Supreme Court of British Columbia. He has also taken his clients to victory before tribunals such as the Residential Tenancy Branch and the BC Human Rights Tribunal.
