How lawyers can help clients contest a will in Alberta, Canada

Different provinces or territories in Canada have different ways of approaching the laws on wills and estate. This means that individuals who want to make a will or contest one should seek lawyers who practice in their location. This helps guarantee that any document or action filed complies with the laws of the jurisdiction. 

For Alberta, Canada, there’s the Estate Administration Act. Another governing law is the Wills and Succession Act which consolidated the following laws: 

• Survivorship Act 
• Wills Act 
• Intestate Succession Act 
• Dependants Relief Act 
• Trustee Act, Section 47 

Meaning of contesting a will in Alberta, Canada 

Contesting a will is the procedure for questioning the validity of a will before a court with jurisdiction. The purpose of contesting a will could be any of the following: 

• have the will declared invalid so that the laws on intestacy are followed 
• have the current will declared invalid so that a previous will is followed 
• have certain provisions declared invalid so that the distribution of assets is adjusted 

Basics of contesting a will in Alberta 

The law holds the last wishes of a deceased in high regard. Out of respect, last wills are followed exactly unless there are obvious and glaring problems to their execution. To better understand this process, here is the “what, when, where, and who” of contesting a will in Alberta. 

Who can contest a will? 

People who can contest a will are those who possess legal standing. To put it simply, a person has legal standing if they stand to benefit or be injured if the will is proven valid. In Alberta, these could be the next of kin, beneficiaries of the current will, or beneficiaries of a previous one.  

Since a wills variation contest is possible in Alberta, even persons who were never named in current or previous wills can contest a will. This person could be a common law partner, adult children, attorneys with enduring power of attorney, and even trustees of represented adults. Notably, even those who would benefit in case of intestacy can file. 

Here’s a more in-depth explanation about legal standing: 

Get more insights into frequently asked questions through our Legal FAQ page. 

What are the grounds for contesting a will in Alberta, Canada? 

Contesting a will must be made on specific grounds set by law. To fully understand the grounds though, you must first understand the elements of a valid will. A valid will should be in writing and made by someone who is 18 years or above. They must have mental clarity at the time the will is signed and fully consent to its contents. 

The will must also bear the signature of witnesses if notarial. If it is holographic or written entirely in the handwriting of the will-maker, then witnesses are unnecessary provided it is signed by the person. 

From here, the ground for contesting a will is basically anything that runs counter to the elements of a valid will. Under the law, these are: 

Here’s how unsound mind is explained in legal context: 

The requirement, “at the time of signing” is an important consideration here. Following the example above, a person with dementia can have moments of clarity or lucid interval. A person contesting a will in Alberta, Canada must therefore prove that the will-maker is suffering from mental incapacity at the time the will is signed. 

Inadequate support as a ground for contesting a will in Alberta, Canada 

Inadequate support is another ground for contesting a will. However, it deserves its own discussion because of the uniqueness of this particular subject. This ground is primarily found in the Alberta Estate Administration Act (EAA) and should allow certain family members to receive funds from the estate different from what was in the will. 

Persons covered by inadequate support include: 

• spouse 
• common law partner or an interdependent partner 
• dependant child 

In simple terms, the will may be contested because the dependant child, spouse, or common-law partner did not receive adequate support from the estate. The keyword here is "dependence." Hence, an independent adult child cannot contest a will in Alberta. They cannot argue that they receive too little or nothing from the estate. 

When must a contest to a will be filed? 

The time for contesting a will is perhaps where most provinces and jurisdictions vary. For example, British Columbia sets a 180-day for a will's variation claim. In Alberta though, the Wills and Succession Act (WSA) sets no precise time limit to file a contest.  

For the best results, a contest must be held before the conclusion of the probate. This is because after a successful probate, the will is already declared valid which could make it harder to prove the grounds for an invalid will. 

Contesting a will in Alberta based on inadequate support follows a different timeline. It should be filed within six months after the grant of probate. Otherwise, a person loses their standing to question the validity of the will. This is why having Alberta estate lawyers is critical as they have a better understanding of procedural concerns. 

Where must a contest to a will be filed? 

A contest to a will must be filed in the same place where probate is filed. If the will is being probated in Alberta, then the challenge must be held in the same court. Failure to file with the same jurisdiction will cause the dismissal of the challenge. It would also fail to suspend probate or the distribution of any assets. 

Costs associated with will disputes 

Costs of contesting a will in Alberta, Canada depends on the complexity of the case. Multiple plaintiffs or a large estate can create complications, pushing the overall costs of disputes to thousands of dollars. This is something plaintiffs must consider especially if there’s only a small variance between what they will receive if the will is not contested. 

Ultimately, though, it is the lawyer who can answer the total monetary cost of a will dispute. Note that financial expenses are just one of the concerns when contesting a will. Between family members, a contest could also have emotional and mental costs, not to mention fraying of family ties. This is why mediation is often encouraged prior to trial. 

Mediation and alternative dispute resolution (ADR) 

Mediation and ADR are modes of resolving disputes through negotiation and compromise. Under Alberta laws, parties are required to undergo mediation or ADR before an actual trial occurs. Counsel is required to discuss this with their clients and encourage good faith efforts to resolve problems outside of the court. 

Of course, not all estate disputes can be settled through negotiation. At the very least, parties should be able to present proof that they participated in mediation proceedings but could not find a middle ground. This proof will then allow the case to proceed to trial where the court ultimately lays down a ruling.  

Ideally though, the parties can still compromise during the trial. This has the effect of stopping the trial altogether, and a quicker resolution can be had by the parties. This also helps prevent further costs for representation. 

Role of the executor in wills and will disputes 

The executor is the person appointed to administer the estate upon the testator’s death. A properly executed and binding will is straightforward and with the executor having the following obligations upon the death of the will-maker: 

• arrange funeral plans 
• cause the probate of the will 
• inventory, collect, and preserve the assets 
• inform the creditors and pay any outstanding debts 
• inform the beneficiaries and distribute their share of the estate 
• payment of taxes 

If the will is contested though, the role of the executor becomes more expansive. This is because when a will is contested, the action is filed against the estate though the executor. The beneficiaries of the will may participate but not necessarily named in the action. 

In case of disputes, the role of the executor is to prove the validity of the will or in some cases, to defend its validity. Here's how this usually works: 

Ultimately though, the executor is bound to follow the decision of the court on the matter.  

Role of estate lawyers 

Individuals who are determined to contest a will in Alberta should seek the help of legal experts who practice in the area. An estate and personal tax planning lawyer would be in the best position to collect, present, and prove ground before the court. Their grasp of the law and jurisprudence makes it easier to convince the court of the merits. 

The best estate lawyers in Canada should be able to offer the following advantages: 

• Lawyers can offer a more specific overview of the process based on their firsthand experience with the process. This should create clear expectation on the costs and timeline of the action 

• Their legal background means they’re in a better position to assess evidence and present it in a way that convinces the court of the existence of grounds 

• Lawyers also have more insight into what kind of evidence needs to be collected for presentations. In some grounds, like unsound mind, collaboration with health professionals is often necessary to prove allegations 

• Lawyers can also provide a more realistic view of expectations upon a will contest. They may also assist during mediation procedures and present clients with clear “pros and cons” that could shift the way they approach the matter 

Proper court representation is also part of a lawyer’s functions in case the dispute proceeds to trial. Their role involves explaining technical matters to clients which will guide future decisions on litigation. 

Getting legal help with will contests 

Ultimately, contesting a will in Alberta, Canada is a complex process that requires knowledge of the law and its proper application. Alberta’s legislation is open to the possibility of irregularities in wills and, therefore, provides a platform for people with legal standing to prove their case. 

If you’re thinking about contesting a will in Alberta, Canada, we suggest seeking the help of estate lawyers with proven experience in this branch of law. For targeted searches, we recommend starting with Lexpert-ranked best estate and personal tax planning lawyers in Alberta!