Contesting a Will in Calgary Alberta
If there are reasonable grounds to contest a will, and you have legal standing, you can challenge it in the Alberta courts.
However, estate litigation is no simple process, and it can be stressful for families.
A will is a legal document, and the court requires significant proof to overturn its contents. Most people require the help of experienced estate litigators to navigate the processes.
At Vest Estate Lawyers in Calgary, we can help you or a family member contest a will in the Alberta courts.
Who can contest a will in Alberta?
Before deciding to contest a will, familiarize yourself with the basic guidelines for the dispute process.
Challenges to wills take up precious court time and have the power to tear families apart.
So before a case will be heard, there are certain expectations regarding who can file estate litigation and the reasons they have for doing so.
Firstly, you must have legal standing to contest a will in the Alberta courts. The following individuals are generally eligible to do so:
- A spouse or adult interdependent (common law) partner
- Adult children
- A beneficiary or other person with a financial interest in the estate who can demonstrate that interest in a previous will
- Attorneys under an enduring power of attorney
- Heirs if a person dies intestate
- The Public Trustee
- Trustees of represented adults
On what grounds can a will be disputed in Alberta?
You cannot usually contest a will if you simply feel that the contents are unfair or the testator (the person who wrote the will) forgot to include something for you.
Every individual in Canada has the right to dispose of their property according to their wishes and there must be good reasons for overturning what is specified in a will.
You must be able to demonstrate valid legal grounds to dispute a will to have any chance of estate litigation being successful in the Alberta courts. There are five main reasons:
1. Lack of mental capacity
Claiming that a testator had a lack of mental capacity to write or change a will is one of the most common reasons for estate litigation in Alberta.
Generally, this requires you to demonstrate one of the following:
- The testator was not of sound mind, memory or understanding
- The testator was suffering from certain mental disorders that affected the judgment
- The testator did not understand the nature and effects of the acts in the will
- The testator did not understand the extent of the property being disposed of
- The testator did not remember who the beneficiaries were
- The testator did not understand the nature of possible claims against the estate from excluded parties
If you can prove that the testator was mentally impaired in one of the ways described above, the court may declare a will invalid.
Such cases may then revert to a previous will or the court may intervene to distribute assets from the estate.
2. Technical flaws render a will invalid
To pass unchallenged through the Alberta courts, a will must be legally valid. This generally means that it is:
- In writing and made by an adult (aged 18 or over)
- Signed and dated by the testator (or an authorized representative)
- Witnessed by at least two other people
These requirements apply to most wills – and to any changes (“codicils”) made to a will. Handwritten holographic wills (and some others) do not require witnesses.
Because of the strict requirements, most people need legal assistance to avoid ambiguities and errors when writing their will. Mistakes are common and these can prompt challenges or delays to estates being executed.
3. The will was forged/fraudulent
High stakes are often involved with wills – and many are written without the assistance of estate planning lawyers.
For these reasons, it should not be surprising that claims of wills being forged occur. These are more common for handwritten wills – and such claims may need to be substantiated by handwriting experts.
Claims of fraudulence can be based upon a person of influence lying to the testator. This is a valid claim but it can be difficult to prove.
4. Undue influence exerted
This is another valid but difficult-to-prove reason for disputing a will.
Undue influence or “duress” usually involves a person of influence exerting pressure on the testator to include certain provisions in a will or to change it.
5. Lack of dependent support
Under Alberta’s estate administration laws, dependent family members are entitled to receive adequate support from a deceased person’s estate.
If the will does not reflect this entitlement, and you are a spouse, common-law partner or dependent child of the testator, you may have valid grounds for challenging it.
Exactly what constitutes “adequate support” is open to some debate. One of our estate litigation lawyers can advise you, if necessary.
Is there a time limit for contesting a will in Calgary, Alberta?
If you dispute a will, you should speak to an estate litigation lawyer for a case evaluation as soon as possible. We can advise you of the application process for formal proof of a will.
Generally, it is best to contest a will before probate has been issued.
Can a will be challenged after probate?
Technically, a will can be contested at any time regardless of whether a grant of probate has been issued.
However, disputing a will becomes more challenging after probate has been granted. It requires significant new evidence to have come to light – for instance, the existence of another will.
Probate is a court process so by challenging a will after probate, you are challenging an existing court decision.
How do you contest a will in Alberta?
If you have legal standing and sufficient grounds to contest a will, we will need to apply to the court to contest it.
We will send a demand letter on your behalf, which puts the executor on notice that you claim an interest in the estate. From here, there will be an opportunity to settle the dispute or pass it to the courts to adjudicate.
Estate litigation is a big step to take. Speak to an estate planning lawyer at Vest Estate Lawyers in Calgary.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our Calgary office is open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Heather Tyminski is a lawyer in the firm’s Calgary office with many years of experience practicing estate law.