How does an Alberta court decide how much family maintenance and support to award from an estate?
This answer covers the law of Alberta.
The court looks at the whole picture, not a formula. Under the Wills and Succession Act, if a will does not adequately provide for a family member's proper maintenance and support, the court may order whatever provision it considers adequate from the estate. The same applies when someone dies wholly or partly without a will and a family member's share is inadequate.
Factors include the family member's relationship with the deceased, age and health, ability to contribute to their own support, and entitlement to support from someone else. The court also looks at the deceased's legal support obligations, the reasons for the gifts made, including written statements, and any agreement or waiver. It considers the size and distribution of the estate and benefits arising from the death, and may consider any other relevant matter.
Orders can be periodic payments, a lump sum, or a transfer of property, with conditions the court considers appropriate. Financial disclosure is also required on written request, and the court can draw an adverse inference if it is withheld. Only certain family members can apply, so eligibility is the first question. A lawyer can explain how these factors apply to your facts.
Key takeaways
- There is no fixed formula, because the court weighs a list of factors and may consider any other relevant matter.
- The claimant's relationship with the deceased, age, health, ability to contribute to their own support and entitlement to support from others all count.
- Orders can be periodic payments, a lump sum or a transfer of property, and periodic payments can be secured and later varied or suspended.
- Without consent or a court order, a personal representative may not distribute estate property for 6 months after the grant, although reasonable advances are permitted, and once notice of an application is served the estate is subject to any order made.