The most expensive mistake in a wills variation claim is not a weak case. It is a missed date. Under section 61 of the Wills, Estates and Succession Act, a spouse or child who wants to vary a will has 180 days from the date the representation grant is issued to start proceedings. Miss it and the claim is not automatically dead, but you are then asking a court for permission rather than asserting a right.
What the 180 day clock actually measures
The clock does not start when the person dies. It does not start when the will is read out at the kitchen table, or when a sibling stops answering texts. It starts when the court issues the grant of probate, or letters of administration where there is no will. Those are two different documents, but the trigger is the same: the moment the estate has a legal representative appointed by the court.
That distinction has consequences. An estate can sit unadministered for a year while the family argues about who the executor should be. During that time your 180 days have not started, which feels like breathing room. It is also a trap, because the moment the grant issues the counter starts and most people do not find out for weeks.
Why the deadline is tied to probate at all
The claim is against the estate, and the estate only exists as a legal thing once a representative has authority to defend it. The executor is the defendant, and an executor cannot be sued in that capacity before they exist in it. The legislature fixed the date at the grant for certainty: a limit everyone can look up in the court file rather than one that drifts.
In practice, the first thing we do on a new wills variation file is pull the probate documents to date the grant. If probate has not issued, we still open the file, because the work in those early months is what wins the file later.
What happens if the 180 days run out
The court has a discretion to allow a claim to proceed after the deadline, and it exercises that discretion sometimes. But you are asking a judge to forgive a late filing, and the other side gets to argue prejudice: that witnesses have died, records have been lost, the estate has been distributed and the beneficiaries have spent the money. Those arguments get stronger with every month that passes, and they get much stronger once assets have actually been paid out.
We do not build a strategy around the discretion. If there is a claim worth making, it gets filed inside the 180 days, even if the estate's disclosure is still incomplete. Pleadings can be refined. A limitation period cannot.
How the count works in practice
Day one is the date on the grant. The count is calendar days, not business days, so weekends and holidays count against you. If the final day lands on a day the court registry is closed, the general rule is that the period extends to the next day the court is open, but you should never be relying on that calculation with a real file. Diarise the deadline 30 days early and treat that as the real one.
There is also a question of service. Filing the notice of civil claim on day 178 does not finish the job if the executor is not served properly. We build the service date into the timeline from the outset, not as an afterthought.
Situations that quietly shorten your runway
A grant can issue long before anyone tells you. Executors are not obliged to advertise to disappointed beneficiaries, and an executor who is also the main beneficiary has every incentive to keep moving. If you know probate has been applied for, or that the executor has been appointed, assume the clock is running.
Where the deceased died with assets in more than one province, there can be more than one grant, and the timing of the BC grant is the one that matters for a BC will.
Where the claim involves property that has already been transferred, you may have a separate problem on your hands, because a variation claim reaches what passes under the will, not what was moved out of the estate beforehand. Those files turn on how title was held and when it changed, and they need a different set of remedies pursued quickly, including a registration against title where there is still something to register against.
The first thirty days, if you think you have a claim
- Find out whether a grant has issued, and get the date. The court file is public.
- Get the will, and any earlier wills. A previous will is often the single most useful document in the file.
- Establish how the major assets were held: solely, jointly, or by beneficiary designation.
- Do not sign anything from the executor, including a release, until you have advice on the deadline.
- Preserve your own records: texts, emails, cards, anything showing what the deceased said about their intentions.
Cost
Contested estate work at Law Boutique is billed at $400 per hour. A limitation review, where we pull the probate file and tell you whether you have a claim worth bringing, is usually a short and inexpensive first step. We will tell you plainly if the cost is likely to exceed what you stand to recover.
Two myths worth clearing up
The first is that the deadline restarts if the will is challenged on some other ground. It does not. If you are arguing the will is invalid because it was not properly signed, that is a different cause of action with its own limitation analysis under the Limitation Act. A variation claim is a separate animal, and running one does not preserve the other.
The second is that an executor's silence protects you. It does not. There is no rule that the clock waits until you are told about the grant, and no obligation on the estate to notify you personally. The information is in the court file, which is why we pull it rather than wait for it.
If you are the executor, the clock cuts the other way
Executors tend to think of the 180 days as the claimant's problem. It is also their deadline. Until it expires, the estate is exposed, and an executor who distributes to beneficiaries inside the period can find themselves personally exposed if a claim lands afterwards. We act for executors on the defence side as well, and the practical step is the same: establish the grant date, decide whether a claim is likely, and structure distributions around it rather than in front of it.
What the court looks at once you are inside the deadline
Filing on time opens the door, it does not win the case. The court considers the will-maker's legal obligations to a spouse and children first, then the moral obligations measured against a standard the community would recognise, then the reasons the will-maker gave for doing what they did. Testamentary freedom is real, and a parent is allowed to leave children unequal shares. The question is whether what was left was adequate, not whether it was fair in the abstract.
The honest version
Most people who call us about a will they consider unfair do not have a claim, because they are not a spouse or child, or because the estate passed outside the will entirely. Of those who do have a claim, most settle. But the ones who lose are almost never the ones with the weaker facts. They are the ones who found out too late that a 180 day clock had been running since a date they never thought to check.
If you believe a BC will failed to make adequate provision for you, contact us and we will date the grant and tell you where you stand.
Book a consultation if you would like us to review a probate file and confirm the deadline. You can also read our guide to wills variation claims under WESA, our pages on wills and estates and probate, and the litigation work we do in Surrey.