Sometimes the contents of a will are known before probate. In these circumstances, those spouses and children that have not been adequately provided for under the will invariably turn their mind to starting a Wills Variation Act claim before probate. This is prudent considering the limitation period for WVA claims is short. A WVA claim is statute barred 6 months after probate. So, when is the earliest date on which a potential claimant can launch a WVA proceeding?
Section 3(1)(a) of the WVA provides that a proceeding must be commenced “…within 6 months from the date of the issue of probate of the will in British Columbia…” You might ask: does this language prevent a person from bringing a WVA proceeding before probate? The BC Court of Appeal considered this question in the 1938 case of Murgatroyd v. Stewart. Although the Court considered the old Testator’s Family Maintenance Act (“TFMA”), the statutory language at issue was the same. The majority of the Court held that the right to start a TFMA proceeding before probate is not restricted by the “within 6 months” language because that language establishes a limitation period and is therefore meant to apply after probate. In other words, the majority held that “within 6 months” is meant to impose a final limit on when a person can launch a proceeding, not limit the earliest date on which a person can launch a proceeding. On the other hand, the minority held that the Court can only hear a proceeding between the date of probate and 6 months after the date of probate.
In Re Stafford, a 1979 New Brunswick decision, the NB Court of Queen’s Bench followed the Murgatroyd v. Stewart decision. The Court suggested, however, that where probate has not been granted, the plaintiff should take out a citation (a procedure forcing the executor to prove the validity of the will) before launching a proceeding to vary the will.
While it is generally impractical to launch a Wills Variation Act claim before probate, the decision in Murgatroyd v. Stewart is good law. Therefore, if it is necessary or desirable to launch a WVA claim before probate, you are legally permitted to do so.