LEGAL OVERVIEW

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This section is for people who have some legal knowledge and want to understand the different legal processes and options. As with the other sections of this manual, it is not intended to be a substitute for legal advice. In fact, if you are involved in estate litigation, you should seek legal help.

Estates Law Generally

The Wills, Estates and Succession Act (WESA) and accompanying Probate Rules were brought into force March 31, 2014. The Supreme Court Civil Rules[1] (the “Probate Rules”) set out the rules to follow when bringing estates matters before the court. The Rules identify who must be given notice of any particular proceeding, how the matter will proceed when it is before the court, and what possible outcomes there are.

These Rules also prescribe what form must be used in any particular case:

There are resources available to help you understand the process of starting a proceeding in the Supreme Court of British Columbia by petition[4] and preparing for a hearing in court[5]

Estate Litigation

WESA introduced simpler procedures to challenge a will, and various challenges can now be brought using the citation form.

Before a grant of probate is issued there are various possible disputes that could arise, and depending on the nature of the dispute, a particular form may be required:

  • Notice of Dispute – a form (P29)[6] to notify the court that a person (the “disputant”) opposes issuance of a grant (e.g., the disputant has reason to believe that the will is invalid or incomplete, or believes that the person applying for the representation grant is not the proper person to apply)
  • Citation – a form (P32)[7] to require a person appointed as an executor to apply for probate; if that person fails to comply, he or she is deemed to have renounced executorship
  • Proof in Solemn Form – a proceeding used when there is a dispute (or potential dispute) as to a will’s validity. It will require the long-form Affidavit of Application for Grant of Probate (Form P4).[8]

The court may appoint a person to administer the estate temporarily while there is an ongoing dispute as to who will finally be appointed executor. A person appointed temporarily in that capacity does not have the right to dispose of assets, but does have a right to be paid for performing executor duties (WESA, s. 103).

After a grant is issued there are other possible disputes that could arise:

  • Removal of Personal Representative – the court has authority to remove a personal representative (executor) under certain circumstances (for example, when the conduct of the executor has endangered the estate, or the executor has acted dishonestly)
  • Wills variation proceedings.

Estate Litigation Limitation Periods

Creditor of the Estate: A person who has a claim against the estate[9] or is a creditor of the estate has 180 days[10] after receiving a Notice to Creditors, or 180 days after the debt falls due, to file a claim.

Fraud or Recovery of Trust Property: Under the Limitation Act, a person will have two years[11] from discovery of the fraud to bring a claim. However, a claim involving a life estate or for possession of real property by a residuary beneficiary is exempt[12] from this limitation period.

Rectification of Will: If a person believes the will contains an error or is unclear and needs correction, an action to rectify the will must be started within 180 days from the date of the grant of probate.

Revocation of Grant: A probate grant may have to be revoked and replaced if the executor dies, goes missing, or becomes incapacitated. Revocation may also be necessary if it turns out that the earlier grant was made in error. A person must start an action for revocation within two years[13] of becoming aware of the event or circumstance that gives rise to a need for revocation.

Wills Variation: Under WESA,[14] the limitation period to commence an action for variation of a will is 180 days after the grant of probate.

Note!! Limitation periods
  • Creditor = 180 days
  • Rectification = 180 days
  • Revocation = 2 years
  • Wills variation = 180 days

Wills Variation Proceedings

A spouse or child of the deceased can seek a variation of a will that does not “make adequate provision for the proper maintenance and support” (WESA, s. 60) of that spouse or child. The current law, WESA, has not changed the law on wills variation claims that existed under the old law, the Wills Variation Act.[15] Cases that were decided under that old Wills Variation Act, and articles commenting on that Act, are still relevant.

The proceeding to vary the will may be brought before issuance of the probate grant, but it must be started within 180 days of the date of the estate grant, and notice of the claim must be served no later than 30 days after the end of that 180-day limitation period. This means that an executor should not make any distribution of estate assets until at least 210 days after receiving the grant. If for some reason the executor or a beneficiary wants to make a distribution of assets before expiry of the 210-day period, the written consent of all persons who received Notice is required, even from those who were not named as beneficiaries in the will itself.

Remember that you are responsible if you distribute the assets to the wrong people, and you risk being sued.

BC courts[16] have held that “issuance” of probate refers to the time at which it is entered in the registry. After it is registered it is complete in the sense that nothing further is required to perfect the grant. Therefore, the variation proceeding must be commenced within 180 days of registration. There is no provision in WESA for extension of the 180-day time limit. The court does have discretion to extend the 30-day period for serving the Notice of Civil Claim.

However, it should be noted that WESA provides that if an action for variation has been brought by one person who is entitled to apply, the limitation period is deemed to have started to run on behalf of all persons who might apply:

61 (4) If an action has been commenced on behalf of a person under this Division, it may be treated by the court as, and so far as regards the question of limitation is deemed to be, an action on behalf of all persons who might apply.

Failure to give notice of the proposed application to a spouse or child of the will-maker, as required by WESA,[17] probably would not extend the limitation period. However, it might be grounds for having the representation grant set aside. The limitation period would start anew upon issuance of a new grant.

If the claim for variation involves real property in BC, the person making the claim may file a certificate of pending litigation (CPL)[18] with the Land Title and Survey Authority (LTSA)[19] against the property within 10 days of starting the wills variation proceeding. The LTSA has issued Practice Note 04-10[20] to describe the correct form of CPL to file. A lawyer’s help will be needed to file the document.

Recent Legal Changes

The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), is currently in force in British Columbia, as of March 31, 2014.

If a will-maker died before March 31, 2014, WESA does not apply to the estate. Instead, the older laws apply, such as the Estate Administration Act, R.S.B.C. 1996, c. 122, the Wills Act, R.S.B.C. 1996, c. 489, and the Wills Variation Act, R.S.B.C. 1996, c. 490. WESA applies to estates where the will-maker died on or after March 31, 2014, even if the will was drafted when the older laws were in effect.

When WESA was originally introduced, it contained provisions for “small estates,” but when the new probate rules were drafted, it was no longer necessary to deal with small estates in the main statute. Click here for more.[21]

In applying for probate, it is the date of application not the date of death that matters. In applying for probate on or after March 31, 2014, use the new forms.

Note!! Limitation period

in making a wills variation
claim = 180 days
+ service = 30 days

Total = 210 days

Resources

Online Resources

Legislation

Regulations and Forms

Header 1 Header 2
Affidavit in support of application for estate grant P8
Affidavit in support of application to pass accounts P38
Affidavit of applicant for grant of probate or grant of administration with will annexed (short) P3
Affidavit of applicant for grant of administration without will annexed P5
Affidavit of assets and liabilities for domiciled estate grant P10
Certificate P39
Citation P32
Estate grant P19
Notice of proposed application in relation to estate P1
Notice of renunciation P17
Statement of account affidavit P40
Submissions for estate grant P2

Resources

  1. BC Reg. 168/2009, Part 25 - Estates [1]
  2. www.ag.gov.bc.ca [2]
  3. www.canlii.org [3]
  4. Justice Education Society. Starting a Proceeding by Petition [4]
  5. www.supremecourtbc.ca [5]
  6. www.ag.gov.bc.ca [6]
  7. www.ag.gov.bc.ca [7]
  8. www.ag.gov.bc.ca [8]
  9. WESA, s. 146(3) [9]
  10. WESA, s. 59(3) [10]
  11. Limitation Act, S.B.C. 2013, c. 13 [11]
  12. Limitation Act, S.B.C. 2013, c. 13, s. 3(1)(c) [12]
  13. Limitation Act, S.B.C. 2012, c. 13 [13]
  14. WESA, s. 61(1) [14]
  15. Wills Variation Act, R.S.B.C. 1996, c. 490 (no longer in force)
  16. Re Hirsch, 1977 CanLII 305 (BCSC) [15], cited in Lee v. Sommerfeld, 1999 CanLII 5604 (BCSC) [16]
  17. WESA, s. 121 [17]
  18. WESA, s. 61(5). The CPL must be in the form prescribed under the Land Title Act, R.S.B.C. 1996, c. 250, s. 215(7)
  19. www.ltsa.ca [18]
  20. www.ltsa.ca [19]
  21. “Wills, Estates and Succession Act and Probate Rules Questions and Answers” [20]
  22. www.ag.gov.bc.ca [21]
  23. www.lawsociety.bc.ca [22]
  24. www.publiclegaled.bc.ca [23]
  25. www.canlii.ca [24]
  26. www.canlii.ca [25]
  27. www.canlii.ca [26]
  28. www.canlii.ca [27]
  29. www.canlii.ca [28]
  30. www.ag.gov.bc.ca [29]