Writing A Will In BC

If you believe that you were unfairly excluded from a will, then you may be able to bring forward a claim to revise the will. However, you must be aware that there are time limits within which this claim must be brought. Read on to learn more about will variation claims, the time limitation to file, as well as some possible exceptions to this time limit.

Example of B.C. Judge Overturning Will

In the summer of 2019, a judge of the B.C. Supreme Court varied a will after 4 daughters brought forward a will variation claim. The 4 daughters were not happy that they had to collectively share less than seven percent of the estate after their parents died in 2016, while their 2 brothers inherited the remaining 93% of the substantial estate. This distribution gave the two sons $4.2 million each, while the 4 daughters were to receive $150,000 each. The 4 sisters challenged the will on the grounds that their parents’ traditional Indo-Canadian values favoured sons over daughters and left them discriminated against. After careful consideration of the family’s history, the judge found an increase to the daughters’ share was warranted. The daughters were granted $1.35 million instead, a sum almost 10x more than what the original will stipulated. Read more about this case here.

Time Limitation for Starting Will Dispute Claims

If you believe you have a will variation claim, make sure you understand the time limitations to file such a claim. The time limit for bringing forward a will variation claim in BC is 180 days from when the “grant of probate” was given, according to the Wills, Estates and Succession Act, SBC 2009, c.13. Probate is the process by which the will is proved to be valid and legitimately that of the deceased.

Claims Started After The Time Limit

When claims are brought forward after the limitation date has expired, they are considered to be statute-barred. This means that the claim can no longer be the subject of a legal action because the time limit has been exceeded.

Are Limitation Periods for Claims Ever Extended?

For the most part, no. In most cases, time limitations are heavily enforced by the courts. This means you need to know the time limitation for the type of claim you’re thinking of bringing forward, and you must act appropriately in order to file the case in time. The best way to do this is to work with a lawyer to ensure you do not exceed important deadlines.

 

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However, some time limitations may be extended if the court finds there is just reason to do so.

Chan v. Lee Estate

One example of a will variation claim that had its time limitation extended is the Chan v. Lee (Estate), 2004 BCCA 644 case. In this case, two sisters had brought forward a claim to have their father’s will changed due to their brothers originally being granted most of the estate. The sisters brought forward a will variation claim, but did so more than a year after the will probate was given (well beyond the 180-day time limit).

However, the brothers were the executors of their father’s will, and were found to have deceived their sisters in regards to their intent to have the will changed to be fairer. The brothers repeatedly told their sisters to wait, and they also never informed the sisters when the will probate had been granted. Because of this, the court found it to be unfair to strictly enforce the limitation period on that will variation claim.

Chancing Wills in BC

Contesting Wills In B.C.

If you’re unhappy with a will’s distribution of assets, it may be possible to have the will overturned or varied – as we saw above. Another example is the case of Lamperstorfer v Plett.

Lamperstorfer v Plett, 2018 BCSC 89 (CanLII)

In this case, the 2 sons were given just 25% each, of their father’s estate while other family members shared in the balance. Both sons had health challenges which led the court to conclude that a reasonably just father would ensure his adult sons would receive the majority of his estate and varied the will accordingly.

On the other hand, you may believe the will is just and yet someone else has brought a challenge and you want to defend the provisions of the will. An example of this is Tippett v. Tippett.

Tippett v. Tippett Estate, 2015 BCSC 291 (CanLII)

In this case, the deceased made a provision in his will to provide for a group of his friends who had cared for him during his lengthy illness and to the day he died. The court in that case did vary some of the terms of the will, but in so doing ensured the provisions for the group of friends was intact.

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It is important to remember that in most cases the will variation claim must be filed within 180 days from when the will has been officially probated. There are some exceptions to this time limit as we saw above, but in most cases these time limits are strictly enforced. Because of this, ensure you work with a legal professional in order to have the claim properly filed in time. Contact us today to discuss your case in a FREE consultation! We’d be happy to sit down with you.

 

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