Time Limits for Advancing a Claim

Under the Will Variation Act, a six month time limit after probate applies for commencing a legal action.

3.(1) An action must not be heard by the court at the instance of a party claiming the benefit of this Act unless

• the action is commenced within 6 months from the date of the issue of probate of the will in British Columbia or the resealing in British Columbia of probate of the will,
• a copy of the notice of civil claim has been served on the executor of the will, and
• if there are minor children of the testator, or if the spouse or a child of the testator is mentally disordered, a copy of the notice of civil claim has been served on the Public Guardian and Trustee.

Note that the 6 month time limit does not apply to claims of unjust enrichment and constructive trust. However, time is usually of the essence as the estate proceeds may well be distributed and no longer available for a judgment.