As an estates lawyer in Victoria and Vancouver, I often meet with clients that have questions and need advice about their rights and obligations under the will of a deceased family member. It is always important for spouses and children of a person who died leaving a will to be aware of the relevant timelines for estates.
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One of the most pressing timelines to take note of is related to wills variation claims. A claim by the spouse or child of a deceased to vary the deceased’s will has a relatively short limitation period that potential claimants need to be aware of. Section 61(1) of the Wills, Estates and Succession Act states that a proceeding must be commenced within 180 days from the date the representation grant (the grant of probate) is issued in British Columbia.
This limitation period is very short in contrast to other types of legal claims in British Columbia. For example, the basic limitation period set out in section 6 of the Limitation Act is 2 years, meaning that most claims must be commenced within 2 years of the claim being discovered. This should not be confused with a claim for variation of a will – it must be commenced within 180 days from the date that probate is granted, with few exceptions.
It is also important for claimants to know that unlike many other types of claims, the person filing the claim does not have one year from the date of filing to serve the other parties. Section 61(1)(b) requires the person commencing the wills variation claim to serve the executor of the will no more than 30 days after the expiry of the 180 day limitation period.
The relatively short limitation period for wills variation actions means that it is very important for spouses and children of a deceased will maker to seek legal advice promptly if they feel that the will does not make adequate provision for their proper maintenance and support.