I Was Left Out of a Will. What Do I Do Now?

Finding out you’ve been left out of a will can be difficult. For many people, it comes as a surprise and raises immediate questions about what happened and what to do next.  

If you’ve been left out of a will in British Columbia, you may have legal options, but they depend on your relationship to the deceased and the specific facts of your situation. In some cases, the law allows certain people to challenge or change a will. 

The Law in British Columbia 

This area of law is governed by the Wills, Estates and Succession Act (WESA). 

While individuals generally have the freedom to distribute their estate as they wish that freedom is limited by law. According to WESA, a will must make adequate provision for the proper maintenance and support of a spouse and children. 

“…if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.” 

If it does not, the court has the authority to vary the will. 

Step 1: Determine If You Can Bring a Claim 

Under WESA, only certain individuals can bring a wills variation claim. 

You may be eligible if you are: 

• A spouse (including common-law spouses)
• A child (biological or adopted)  

If you are not in one of these categories, a wills variation claim is generally not available, although other legal challenges may still be possible to set aside a will or revert to a prior will. 

Step 2: Identifying a Wills Variation Claims 

Section 60 of WESA allows the court to vary a will if it does not make adequate, just, and equitable provision for a spouse or child. 

Wills variation claims are often brought in situations where a spouse or child has been excluded or treated unequally. Common examples include: 

• A child is left out of the will entirely or receives little to no share of the estate.
• A spouse is left out of the will, and the estate is left to children or others. 
• One child receives a significantly larger share of the estate than others, without a clear explanation. 
• The will reflects a second marriage or blended family situation, where biological children are excluded. 
• Family members are estranged, have been out of touch, or have had a falling out. 

These examples do not automatically result in a successful claim. The court will still apply the legal test under WESA and consider the specific facts of each case. 

The test is whether the will meets the deceased’s legal and moral obligations and if not, the court can change or rebalance the division of assets under the will.  In a wills variation claim, a court can include beneficiaries who have been disinherited. 

Legal Obligations: Legal obligations are duties the deceased had during their  lifetime that would have been enforceable by law. 

Examples include: 

• A legal duty to support a spouse 
• Child support obligations (including for adult children in some circumstances) 
• Financial responsibilities arising from a separation agreement or court order  

These are relatively concrete. If a person had a legal obligation to provide support while alive, the court will generally expect that to be reflected in the will. 

Moral Obligations: Moral obligations are broader. They reflect what a reasonable person in the deceased’s position would have done in the circumstances. 

Examples may include: 

• Providing for a spouse, even if there was no strict legal obligation. 
• Treating children in a fair and balanced way. (For more, see this blog on the question of whether outdated or sexist cultural norms and traditions can justify disinheriting one child over another) 
• Recognizing a child’s financial need or vulnerability. 
• Acknowledging contributions made by a child to the deceased’s care or estate.  

Moral obligations are assessed on a case-by-case basis. The court considers the size of the estate, the relationships involved, and the overall context and circumstances of each potential beneficiary. 

Step 3: Know the Time Limit 

Timing is critical. 

A wills variation claim must be filed within 180 days from the date probate is granted. If this deadline is missed, the ability to bring a claim may be lost. 

If you were not given notice of the application for probate, there may be grounds to extend the time to file a claim. 

Step 4: What the Court Considers 

Courts in British Columbia assess each case based on its specific facts. Common factors include: 

• The size of the estate 
• The claimant’s financial circumstances 
• The relationship between the claimant and the deceased 
• Any contributions made by the claimant 
• Any valid reasons for exclusion  

These factors are grounded in established case law interpreting WESA. 

Step 5: Other Ways to Challenge a Will 

If your concern is not about fairness, but about how the will was created, other legal claims may be available. 

These can include: 

• Lack of testamentary capacity 
• Undue influence 
• Improper execution of the will  

What to Do Next 

Being left out of a will can be unexpected and difficult. In British Columbia, the law provides a framework to address situations where a spouse or child has not been adequately provided for — but strict legal criteria and timelines apply.  

If you’ve been left out of a will, it’s important to act promptly: 

• Obtain a copy of the will 
• Confirm whether probate has been granted 
• Seek legal advice as soon as possible  

Early advice can help you understand whether you have a claim and ensure you do not miss important deadlines. Contact our experienced Estate Litigation team for a free consultation.