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Estate Disputes

Estate Disputes

Contesting a Will in Alberta FAQ

1. Who may contest a will in Alberta?
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  • A beneficiary or anyone else with a provable interest in a will
  • Adult children
  • An interdependent or common law partner of the estate
2. How can a will be contested in Alberta?
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  • Invalid or Flawed Wills – for a will to pass through probate in Alberta, it must satisfy the legal requirements for a valid will, which include: that it was made in-writing by adult; that it was witnessed by a minimum of two other adults; and, that is was signed and dated by the deceased person or an authorized legal representative.
  • The deceased person lacked mental capacity to make the Will – if you have concerns that, when the will was prepared or executed, the person did not have sound mind, memory, or understanding necessary to appreciate the nature of the estate property, beneficiary entitlements, then it is possible the will may be contested.
  • Undue influence or coercion – if you have information suggesting that the deceased person was under duress through undue influence or coercion by someone, it is possible that the will may be contested on that basis.
  • Failure to Provide Support to Dependents in the Will – If you or someone you know was financially dependent on the deceased person or testator, and your interests are not adequately protected in the will, you may be entitled to contest the will on this basis.
3. Is there a deadline or timeline for contesting a will in Alberta?
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  • While there is no firm deadline set out in the Alberta Wills and Succession Act, there is a requirement to “distribute the estate as soon as practicable.” This means that you should move quickly to consult with an estate litigation lawyer to assert any potential claims you may have.
  • If you are a family member and think you may have a case for maintenance and/or support from the estate, you must apply for this within 6 months after the grant of probate or administration is issued.
4. Do I need a lawyer to contest a will in Alberta?
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  • While anyone can represent themselves in court, it is highly recommended that you have a lawyer who specializes in estate disputes, as this area of law is very complex and court intensive.
5. How do you make a claim against an estate if you are a family member or an Adult Interdependent Partner (“AIP”)?
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You must do so by preparing a Notice of Application and supporting Affidavit which sets out the facts used to support your claim. If this is an application for maintenance and support under the Wills and Succession Act, you must do so within 6 months of the grant of probate or administration being issued.

Who must you notify if you wish to make a claim against an estate?

Under Section 91(1) of the Wills and Succession Act, if you have prepared and filed a Notice of Application and Affidavit in support, the Notice of Application must be served on:

  1. on the personal representative of the estate and all family members,
  2. on any other persons who may be interested in or affected by an order under this Division, and
  3. on the Public Trustee if a person who is, or who at the date of the deceased’s death was, under 18 years of age, is interested in the estate.

Generally, you will require assistance in preparing your Notice of Application and supporting Affidavit. It is highly recommended that you seek the assistance of legal counsel who focuses on wills and estates matters.

If you think that any of the above grounds may apply in your case or to some you know, please do not hesitate to contact us to schedule an in-depth consultation.

Disputes against Personal Representatives or Executors in Alberta

When a person dies-with or without a will-a personal representative or executor is chosen or appointed to administer or carry-out the wishes of the deceased person. The problem is many executors or PRs lack the skills necessary to properly administer the estate.

In Alberta, executor or PR duties include but are not limited to:

  • Locating and recording the estate assets or property
  • Notifying government and financial institutions of the person’s passing and ensuring appropriate documents are filed
  • Apply for probate or the passing of accounts (validating the will)
  • Distributing estate property to the beneficiaries after paying any debts of the estate.

In Alberta, executors or PRs have a legal obligation to act with care and attention and may be held liable for their mistakes in settling an estate. These mistakes often include, but are not limited to:

  • Failing to properly interpret or follow the terms set out in the will
  • Unreasonable delay in distributing payment or property to beneficiaries
  • Failing to sell or dispose of assets in a timely manner or at all
  • Failing to maintain accurate records of how the estate was settled
  • Unreasonably engaging in disputes on the estate’s behalf
  • Failing to or deliberately avoiding payment to a dependent adult, spouse or child of the estate.

If you are a beneficiary, dependent or anyone else with an interest in an estate, are concerned about how an executor or PR is administering or dealing with an estate, it is important to act quickly.

Contact one of our estate dispute lawyers at your earliest convenience to discuss your options.

Dependent Support Claims

As an adult interdependent partner or common law partner, dependent child, the Alberta Wills and Succession Act entitles you to recourse if you were not adequately protected in an estate.

    1. How to make a Dependent Support Claim in Alberta?
      A dependent adult or child may make what is called a Family and Maintenance Support Claim (“FMS Claim”) if you can demonstrate that you have a need for ongoing support and/or maintenance from the estate.
    2. What factors does the Court look at for Dependent Support Claims?
      • A person’s needs, age, and health
      • The nature and length of the person’s relationship with the deceased person
      • The estate size
      • Other factors.
    3. When to make a Dependent Support Claim against an Estate?
      You should move quickly to make a claim and within six months of a grant of probate being issued.

If you or someone you know is or may be a Dependent of the estate, it is important to seek advice and direction as soon as possible on how to proceed.

Please contact us today to schedule an in-depth consultation to discuss your options.

Advances against a Beneficiary’s Share of the Estate

In some cases, a testator (the deceased person) will have made a transfer of property or money to a beneficiary while the testator was still alive. It is possible that the testator intended for this transfer to be an advance against that beneficiary’s share of the estate. As you might imagine, these situations can become contentious with the one beneficiary arguing it was a gift and others asserting the transfer was to be treated as an advance.

If you think that a deceased person or testator made a transfer to a beneficiary while he or she was still alive, and it was intended to be an advance as against that beneficiary’s share of the estate, you may bring an application under S. 109(1) of the Wills and Succession Act (Alberta).

In making a determination as to whether the transfer was an advance against the beneficiary’s share of the estate, the Court will consider several factors, including testator and the beneficiary’s oral or written statements about the transfer.

The Court will make assessments based on several additional considerations, including (but not limited to) the nature of the transfer; the value of the transfer; and, if an advance is proven, the Court may then deduct the value of the transfer from the beneficiary’s share of the estate on distribution.

Please note that an application under Section 109(1) must be made within 6 months of a grant of probate or administration.

The above information does not constitute legal advice, and you are encouraged to seek a legal opinion regarding your unique circumstances.