How to Contest a Will in BC: Your Guide to Challenging a Will
Quick Answer: Contesting a will in British Columbia means asking a court to set aside a will because it is not legally valid, or to change how an estate is divided because it did not provide fairly for a spouse or child. In BC, both challenges fall under the Wills, Estates and Succession Act (WESA). If you are bringing a wills variation claim, you usually have just 180 days from the grant of probate to file, and the deadline is enforced strictly.
If you believe a loved one’s will is invalid or unfair, knowing which type of challenge applies, and acting before the deadline, is the difference between a viable claim and a lost one. The two kinds of challenge have different rules, different eligible claimants, and different time limits. This guide explains validity challenges versus wills variation claims, who can bring each, the grounds the court will consider, and how the process works in Vancouver and across BC.
This article provides general legal information for British Columbia residents, not legal advice. Consult a BC estate litigation lawyer before taking any steps to contest a will.
Two Different Challenges: Validity vs. Variation
People often say they want to “contest a will,” but in BC that phrase covers two very different claims, and knowing which one applies is the first step.
- A validity challenge asks whether the will is a legally valid document at all. If it is not, the court can set it aside, and the estate is then distributed under an earlier valid will or, if there is none, under BC’s intestacy rules.
- A wills variation claim accepts that the will is valid but asks the court to change the distribution because the will-maker did not make adequate provision for a spouse or child. This is a feature of BC law that does not exist in most other provinces, and it gives close family members a meaningful right to challenge an unfair will.
The distinction matters because the two claims have different claimants, different grounds, and different time limits, which we cover below.
Who Can Challenge a Will in BC
For a wills variation claim under section 60 of WESA, only a spouse or a child of the deceased can apply. A spouse includes a married spouse, or a person who lived with the deceased in a marriage-like relationship for at least two years before death. A child includes biological and legally adopted children, including adult independent children, but not stepchildren unless they were legally adopted.
For a validity challenge, the group is broader. Anyone with a sufficient interest in the estate (such as a beneficiary under an earlier will or someone who would inherit under intestacy) can raise concerns about whether the will is valid.
Grounds to Contest a Will
The grounds depend on which claim you are bringing. For a validity challenge, the recognized grounds include:
- Lack of testamentary capacity: the will-maker must have understood that they were making a will, known roughly what they owned, and appreciated who would normally expect to inherit. Conditions such as dementia at the time of signing can undermine capacity.
- Undue influence: if someone pressured or coerced the will-maker into signing a will that did not reflect their true wishes, the will can be challenged. Courts look closely at situations where a person in a position of trust benefited unexpectedly.
- Improper execution: a will generally must be in writing, signed by the will-maker, and witnessed correctly. A will that fails the formal signing requirements may be invalid, although BC courts have some power under WESA to cure certain technical defects.
- Fraud or forgery: if the will or a signature was forged, or the will-maker was deceived about what they were signing, the document can be set aside.
For a wills variation claim, the ground is different: the question is whether the will failed to make adequate, just, and equitable provision for the spouse or child, weighing both the will-maker’s legal obligations and their moral duty to close family.
The 180-Day Deadline You Cannot Miss
Timing is the single most important practical issue in any will dispute. Under section 61 of WESA, a wills variation claim must be both filed and served within strict deadlines: the claim must be commenced within 180 days from the date the grant of probate is issued, and a copy must then be served on the executor within 30 days after that — meaning the entire process must be complete by day 210 at the latest. Courts enforce these deadlines strictly. The clock runs from the grant date, not from the date of death or the day you learned about the will. The date probate was granted is a matter of public record and your lawyer can confirm it quickly, so uncertainty about timing is not a reason to delay getting advice.
Validity challenges do not run on the same 180-day clock. They generally fall under the standard two-year limitation period under the BC Limitation Act, counting from when you knew or ought to have known of the grounds, although it is far better to raise validity concerns before probate is granted. Because estates can begin distributing soon after probate, waiting is risky regardless of which claim you have.
How the Will Dispute Process Works
While every case is different, a will dispute in BC generally moves through these stages:
- Get advice and protect the deadline: speak with an estate litigation lawyer as early as possible. If probate has not yet been granted, your lawyer can file a Notice of Dispute, which pauses the grant and gives you time to gather evidence before the estate is distributed.
- Gather evidence: the strength of a claim depends heavily on documentation — the will and any earlier versions, the will-maker’s medical records, financial records, and correspondence that sheds light on their intentions and your circumstances.
- File the claim: a wills variation claim or a validity challenge is started in the Supreme Court of British Columbia. For a variation claim, filing must happen within the 180-day window and the executor must be served within 30 days after that deadline.
- Negotiate or mediate: many estate disputes settle without a trial. Mediation lets the parties reach a resolution privately, which often preserves family relationships and avoids the cost and uncertainty of a courtroom.
- Trial, if needed: if the matter does not settle, a judge hears the evidence and decides whether the will is valid and whether the distribution should be varied. The court can order a different division of the estate where the law requires it.
A Note on Cost & Family Relationships
Estate litigation can be emotionally difficult because it usually involves family. It is worth thinking carefully about the relationships at stake before launching a claim, and mediation often provides a path that resolves the dispute without permanently fracturing a family.
On cost, claimants generally fund their own legal fees initially. Depending on the outcome, costs may be recovered from the estate, or an unsuccessful party may be ordered to pay. It is also worth knowing that joint assets passing by right of survivorship generally fall outside the estate and are not affected by a wills variation claim. However, where assets were transferred to a third party specifically to defeat a family member’s claim, those transfers can sometimes be challenged separately — this is a fact-specific area and worth raising with your lawyer if it applies to your situation.
Frequently Asked Questions About Contesting a Will in BC
How long do I have to contest a will in BC?
It depends on the type of challenge. For a wills variation claim, you must file within 180 days of the grant of probate and serve the executor within 30 days after that. For a validity challenge, the standard two-year limitation period under the BC Limitation Act applies, running from when you knew or ought to have known of the grounds, though acting before probate is granted is always preferable.
Who is allowed to contest a will in British Columbia?
A wills variation claim can be brought only by a spouse or child of the deceased, including adult children and a marriage-like partner of at least two years. A validity challenge can be brought more broadly by anyone with a sufficient interest in the estate, such as a beneficiary under an earlier will.
What are the grounds to challenge a will’s validity?
The main grounds are lack of testamentary capacity, undue influence, improper execution, and fraud or forgery. Each requires evidence, which is why medical records, earlier wills, and correspondence are often central to these cases.
What is the difference between a validity challenge and a wills variation claim?
A validity challenge argues the will is not legally valid and should be set aside entirely. A wills variation claim accepts that the will is valid but asks the court to change the distribution because it did not adequately provide for a spouse or child. The two claims have different eligibility rules, different grounds, and different deadlines.
How much does it cost to contest a will in BC?
There is no fixed cost — it depends on the complexity of the claim and whether the matter settles or goes to trial. Claimants generally pay their own legal fees upfront. If successful, costs may be recoverable from the estate; if unsuccessful, a court may order you to contribute to the other side’s costs. Many disputes resolve through negotiation or mediation before trial, which is typically less costly than a full court proceeding.
If you think a will is invalid, or that it failed to provide fairly for you as a spouse or child, the most important thing you can do is get advice quickly, before the clock runs out.
