Land Title Practice Manual

61 Time Limit And Service

In This Volume

  • 61 (1) A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless
  • (a) the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,
  • (b) a copy of the initiating pleading has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (a) unless the court, before or after the expiration of the 30 days, extends the time for service, and
  • (c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading has been served on the Public Guardian and Trustee.
  • (2) A proceeding in respect of the will of a Nisga’a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of this Division unless a copy of the initiating pleading has been served on the Nisga’a Lisims Government or the treaty first nation, as applicable.
  • (3) If the Public Guardian and Trustee is served with a copy of the initiating pleading under subsection (1), the Public Guardian and Trustee is entitled to appear, to be heard and to any costs that the court orders.
  • (4) If a proceeding has been commenced on behalf of a person under this Division, it may be treated by the court as, and so far as regards the question of limitation is conclusively deemed to be, a proceeding on behalf of all persons who might apply.
  • (5) Within 10 days from the date of the issue of the initiating pleading, a plaintiff in a proceeding under this Division may register, in the land title office in which the title to land sought to be affected is registered, a certificate of pending litigation against the land in a form approved under the Land Title Act.

2009-13-61, effective March 31, 2014 (B.C. Reg. 148/2013); 2011-6-23 and 25; 2019-4-5.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Certificate of Pending Litigation May Be Filed

Note that s. 215(7) of the Land Title Act provides:

  • (7) Despite subsection (1), a person who has commenced an action under the Wills, Estate and Succession Act may register a certificate of pending litigation in the form approved by the director against the land affected.

Wills Estates and Succession Act, Form 34

The director has approved a new version of the Form 34 (Wills, Estates and Succession Act) for registering a certificate of pending litigation in a proceeding to vary a will under the Wills, Estates and Succession Act. This form must be used for deaths occurring on and after March 31, 2014.

Proceedings to vary a will in relation to a death that occurred before March 31, 2014 must use Form 34 (Wills Variation Act).

The use of Form 34 is compulsory.

Submissions

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the original Form 34 (Wills, Estates and Succession Act) or the original Form 34 (Wills Variation Act) and related originating process documentation (for example, notice of civil claim).