There are several reasons that a person may contest a will. They may have been left out of the will or feel that they did not get what they thought they should. Whatever the reason, contesting a will is not easy, but the process is straightforward – as long as you begin your action before the statute of limitations runs out. There are several stages that a will goes through which means there are several time limitations that must be considered by someone who wishes to contest it. Understanding these time limitations at each stage is integral to successfully filing your petition and contesting the will.
One significant deadline occurs once the will goes into probate. While there is no specific timeframe or deadline, it is more beneficial to contest the will before it goes into probate. This means that you must begin the action as soon as possible to ensure it does not go to probate. A probated will requires the return of the Certificate of Appointment of Estate Trustee, a motion made in court. At that time, you can challenge the will. If it hasn’t been probated, you need to file a Notice of Objection, an application that is filed with the registrar. This will prevent it from going to probate until the court has adequately addressed your issues with the will.
The court will schedule a probate hearing for your case. It is very important that you attend. That is where you will present your evidence. It is also when the court will make its decision. If the court deems the will to be valid, there is still a chance that you can file under the Wills Variation Act to have it changed, or “varied.” However, this is only possible if you are the surviving child or spouse of the person who executed the will.
The deadline to begin this action is 6 (six) months from the date that the court admits the will into probate.
For general purposes, most lawsuits for contesting a will, with the exception of variation of a will, are governed according to a two-year deadline or limitation period.
Each province in Canada has its own laws concerning wills. In British Columbia, the Wills, Estates and Succession Act (WESA) is the law that governs wills and defines specific deadlines for challenging a will under a variation claim.
1 (1) A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless:
(a) the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,
(b) a copy of the initiating pleading or petition has been served on the executor of the will no later than 30 days after the expiry of the 180-day period referred to in paragraph
(c) unless the court, before or after the expiration of the 30 days, extends the time for service, and;
(d) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading or petition has been served on the Public Guardian and Trustee.
A variation claim must be started within 180 days from the issuance of the representation grant. However, it can vary somewhat as some BC case law on wills states that the deadline does not prevent the startup of an action prior to the courts granting probate – another reason that hiring an attorney is vital when contesting a will.
If you are planning to contest a will, you need someone in your corner who has the knowledge, experience, and education to represent you. Call McLarty Wolf Litigation Lawyers and get the help you need. We will give your case the personal care and attention it deserves and will work tirelessly to fulfill our commitment to your case’s success.
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