Limitation periods apply to all matters, including those that arise from the administration of an estate. Below, we have attempted to simplify the general rules with respect to limitation periods as they relate to litigation that arises during the administration of an estate. They can be broken down into two different categories: (1) Before the issuance of Probate; and (2) After the issuance of Probate.
Before Probate:
Section 106 of WESA allows a person to oppose the issuance of a representation grant in accordance with the SCCR. The Notice of dispute can be filed any time before the issuance of probate.
The purpose of the notice of dispute is to oppose the issuance of the grant by the court. For example, a notice of dispute may be filed by the disputant on the grounds that the will being submitted for probate is invalid, incomplete or the applicant for the grant is not the proper person.
A person entitled to notice of an application for an estate grant may file a notice of dispute (SCCR 25-10(1)).
A person who is not entitled to notice of an application may file a notice of dispute, if they obtain a court order permitting the filing by showing that, unless they are included in the class of persons entitled to notice, they or another person or the estate would be prejudiced (SCCR 25-2(14)).
After Probate:
Limitation period for the variation of a will : ( 6 months)
Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the wife, husband or children.
The limitation period to commence an action for wills variation is six months from the date of the issue of probate of the will in British Columbia. (Section 3(1) (a) of Wills Variation Act). However, in Chan v. Lee Estate, 2004 BCCA 644, the court found that it would be unfair to apply the limitation period because of the particular situation that caused the claimants to miss the deadline.
Limitation period for the rectification of a will: ( 6 months)
Section 59 of WESA provides that the rectification application must be made prior to the grant of probate being issued or within 180 days of the grant of probate being issued, unless the court extends that date.
General limitation period after issuance of the probate: (two years)
When there is a dispute or the potential for a dispute as to the validity of a will, the will should be proved in solemn form as opposed to common form. Proof in solemn form, requires proof of the will in a hearing or trial, after which the court pronounces for the force and validity of the will in solemn form (SCCR 25-1(5)). A will may be proved in solemn form by notice of application if there is an existing proceeding within which it is appropriate to seek that order under SCCR 25-14(4). If there is no proceeding that exists at the time, a will may be proved in solemn form by commencing a proceeding by petition under SCCR 16-1.
The general limitation period of two years from the date of issuance of probate.
After the will has been proven in solemn form:
As discussed in Romans v. Tassone, 2009 BCCA 421, a will that has been proven in solemn form is largely immune to later challenge (short of an appeal). However, such challenges can be raised at a later time in two limited circumstances: (1) upon the discovery of a more recent will; or (2) upon the discovery that the prior grant was issued on the basis of a fraud. Such a discovery crystalizes the claim and starts the running of a two-year limitation period in which to commence proceedings (by petition or by bringing an action, as the case may be) to address the alleged defect. Notwithstanding, counsel should act quickly as, absent notice to the contrary, the personal representative will presumably continue to administer the estate under the currently probated will. In such circumstances, the existing personal representative will not be faulted for doing so, provided they are otherwise acting in compliance with their duties.
Disclaimer: Remember that all cases are fact-specific. The above is general guidance and not meant to be legal advice. If you have a question about your case, please reach out to contact us.
