Anonymised, illustrative composite. The founder left the operating company to the daughter who ran it and cash to the two children who did not. In British Columbia that is not the end of the matter, and the reason is one section of one Act.
At a glance
The founder built a millwork and cabinetry business in the Okanagan over thirty-one years. One of his three children — the eldest daughter — came into the business at 26, ran production, then ran the company outright for the last eleven years of his life while he moved to a chairman-in-name-only role. The two sons had professional careers elsewhere and no involvement beyond a standing invitation to Christmas lunch.
The estate plan was the one most advisers would have drawn: the shares to the daughter, the cash and a rental property divided between the two sons, and a letter of wishes explaining that the daughter had built the value she was inheriting. Nothing about it was careless, and in most Canadian provinces nothing about it would have been vulnerable.
Within four months of the grant of probate the two sons filed a wills variation claim. They did not allege incapacity, undue influence or a defect in execution. They did not need to. Their claim was simply that the will did not make adequate provision for them, and in British Columbia that is a claim a court can hear on its own terms.
The commercial effect was immediate and had nothing to do with the merits. A regional consolidator withdrew its letter of intent inside three weeks of the claim being served. A litigation charge can attach to the shares themselves, so the asset a buyer was pricing now carried an undetermined claim.
The estate was appraised at $6.4 million: $4.8 million of shares in the operating company, $900,000 of cash and marketable securities, and a $700,000 rental property. The two sons therefore took roughly 25% of the estate between them and the daughter took 75%, all of it illiquid.
The company itself could not fund a settlement. Normalised EBITDA was $840,000 against $1.9 million of bank and equipment debt; the lender’s covenants left no room for a $1 million dividend or share redemption. The daughter’s options were a sale she no longer controlled the timing of, a refinancing at materially worse terms, or a settlement structured over time. The eventual number — $1.15 million, or about 18% of the estate, funded $400,000 from a life policy and the balance by a five-year promissory note secured by a second charge on the shares — cost less than either alternative.
Section 60 of British Columbia’s Wills, Estates and Succession Act opens with the words “Despite any law or enactment to the contrary” and then permits a court to intervene where 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 then order “the provision that it thinks adequate, just and equitable in the circumstances”.
Read that provision for what it does not say. It does not say dependent children. It does not say minor children. It does not require the claimant to show they were being supported, or that they need supporting now. The class is “spouse or children”, full stop, and an adult child with a good job and no financial need is inside it.
The timing rule in s.61(1)(a) is what turns this from a theoretical exposure into a scheduling problem for a sale: a proceeding must be commenced “within 180 days from the date the representation grant is issued in British Columbia”, with service on the executor no later than 30 days after that period. Six months of uncertainty is baked into every British Columbia business estate, whether or not a claim ever arrives.
Ontario is the contrast, and it is not a difference of degree. Part V of Ontario’s Succession Law Reform Act allows a support order only where a deceased “has not made adequate provision for the proper support of his dependants or any of them” (s.58(1)) — and s.57(1) defines a dependant as a spouse, parent, child or sibling “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death”. Two self-supporting adult sons who had received nothing from their father for twenty years are not dependants. The identical will, the identical family, the identical company: in Ontario there is no claim to bring.
The claim settled at mediation eleven months in, at $1.15 million split between the two sons, on terms that left the shares in the daughter’s hands. The consolidator returned fourteen months after it walked, and paid $4.55 million — against an indicative $4.8 million before the claim. The settlement note ran alongside the sale and was discharged out of proceeds.
The structural fix, had it been done in the founder’s lifetime, was not a better-drafted will. It was to move value out of the estate before death: an estate freeze capping the founder’s interest and issuing growth shares to the daughter, an alter ego trust holding the frozen preferred shares, and a life policy sized to fund the sons’ share without touching the company. Section 60 operates on the estate. Value that is not in the estate is not what the court is dividing.
The instinct in the first month was to fight. On the numbers that instinct was expensive. A contested wills variation trial in British Columbia is a multi-day matter with valuation evidence on both sides; counsel budgeted $340,000 to $420,000 for the estate’s side alone, with the risk that costs would be ordered payable out of the estate in any event. Add another twelve to eighteen months of a business that no buyer would price, in a consolidation window that was visibly closing, and the litigation path was worse than the settlement before a single finding of fact was made.
The tell was on the front of the will: a British Columbia address and a business that was 75% of the estate. Any succession plan in that province where one child takes the operating company and the others take what is left is a s.60 exposure by construction, and no amount of explanatory drafting removes it — s.62 lets the court receive evidence of the will-maker’s reasons, but receiving the reasons is not the same as being bound by them.
The second tell was the letter of intent. A buyer who reads a British Columbia estate will ask when the representation grant issued and whether the 180-day window in s.61 has closed. If the answer is “three weeks ago”, the deal is not being negotiated yet — it is being scheduled around a limitation period.
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