Can a child or sibling challenge how an intestate estate is divided in Alberta?
This answer covers the law of Alberta.
Whether you can challenge how an intestate estate is divided depends on your relationship to the deceased and the facts, so it is worth confirming with a lawyer. An intestate estate is distributed in accordance with Part 3 of the Wills and Succession Act, so the shares are set by the statute rather than by what the family would prefer.
Disputes often turn on who counts as an heir. A person claiming to be an adult interdependent partner has the onus of proving the relationship, and an unmarried partner who does not qualify has no intestacy share. A spouse may be treated as having predeceased if the spouses lived separate and apart for more than two years, unless a reconciliation was subsisting at death. Siblings come in only when there is no spouse, partner or descendant, and after any surviving parents.
Once a Statement of Claim or Form C1 is filed, any party can apply for a Surrogate Case Conference. Who may start a claim, and by when, depends on your relationship to the deceased and the facts, so speak to a lawyer early.
Key takeaways
- The shares in an intestacy are set by Part 3 of the Wills and Succession Act, not by what relatives think is fair.
- Disputes often concern whether someone qualifies as an adult interdependent partner, which the person claiming that status must prove.
- If some of the deceased's descendants are not also the spouse's, the spouse takes the greater of $150 000 or 50% of the net estate.
- Once a Statement of Claim or Form C1 is filed, a party can apply for a Surrogate Case Conference.