What Spouses Need to Know About Their Rights to Challenge an Unfair Will

Discovering that your spouse’s will leaves you with far less than you expected, or nothing at all, is a painful shock that often arrives in the middle of grief. At Linley Welwood, we want you to know that British Columbia law recognizes your legitimate claim, and a valid will is not necessarily a final one.

British Columbia Law Gives Spouses a Unique Right to Challenge

Under Section 60 of British Columbia’s Wills, Estates and Succession Act (WESA), a surviving spouse has the statutory right to apply to court for a variation of the will if it fails to make adequate provision for them. This right exists regardless of whether the will was properly executed or whether your spouse was of sound mind when they signed it.

That distinction matters. Many spouses assume they need to prove mental incapacity or undue influence to challenge a will. In British Columbia, you don’t. The law simply asks whether the will provides fairly for you, and if it doesn’t, the court has authority to vary it.

Find out when adult children have legal grounds to challenge their disinheritance.

What Courts Look At

“Adequate provision” is assessed based on your specific circumstances. Courts weigh factors including:

• The length of the marriage and contributions made, including non-financial ones
• Your current financial needs and resources
• The size of the estate
• Any health issues or disabilities affecting your situation
• The interests of other beneficiaries

The 180-Day Deadline

This is the piece of information we want spouses to hear early: a wills variation claim in British Columbia must be filed within 180 days of the grant of probate, not from the date of death. Extensions could be possible in certain circumstances but waiting too long, even while processing grief, could result in losing your right to act entirely.

If you’ve recently learned that a will doesn’t adequately provide for you, speaking with a lawyer sooner rather than later protects your options, even if you’re not ready to make any final decisions.

Find out how wills variation claims differ for children and spouses.

What the Process Involves

Most variation claims are resolved without having to proceed all the way to trial. The process typically includes filing a Notice of Civil Claim, document disclosure from all parties involved, court applications, and settlement negotiations, with trial being necessary only if no resolution is reached.

Exercising this right isn’t a betrayal of your spouse’s memory. Years of partnership carry real legal and moral weight, and the law acknowledges that.

We’re Ready to Hear Your Story

If you’re facing this situation, you don’t have to figure it out alone. Our team has experience helping spouses navigate wills variation claims with care and clarity. Reach out to us at 604-850-6640 and we’ll take the time to understand your circumstances and help you determine your next steps.