- An Alberta court may add or delete words in a will only if it is satisfied on clear and convincing evidence that the will does not reflect the testator's intentions because of a listed kind of error.
- A rectification application may not be made more than 6 months after the grant of probate or administration is issued, unless the Court extends the period.
- In Surrogate proceedings, the Court may order costs to be paid from the estate or by any person who is a party to the application.
You are reading a deceased person's will and something looks wrong. A name is misspelled, a gift is described incorrectly, or a clause seems to say the opposite of what the person told everyone they wanted. The testator cannot explain it now, and you may wonder whether the words on the page are the end of the story.
In Alberta, a court has a limited power to correct a will after death. It is called rectification, and it is not a way to rewrite a will because someone thinks it is unfair. This article explains what the power covers, the evidence required, the deadlines and how the application works.
This article covers the law of Alberta.
What rectification means and when it applies
Under section 39(1) of the Wills and Succession Act, the Court may rectify a will by adding or deleting words. It can do so only if it is satisfied on clear and convincing evidence that the will does not reflect the testator's intentions.
The mismatch must also come from one of the causes the Act names:
- An accidental slip, omission or misdescription.
- A misunderstanding by the person who prepared the will.
- A failure by the person who prepared the will to carry out the testator's instructions.
In plain terms, the question is not whether the result seems fair. It is whether an error got in the way of what the testator actually meant, and whether the evidence of that is strong.
When a signature is missing
A narrower rule applies where the testator's signature was left off. Rectification is allowed in that case only if the Court is satisfied that the testator intended to sign and intended the writing to be their will.
This is a separate question from fixing wording. Whether a particular document can stand at all depends on its facts, so it is worth getting legal advice early.
Handwritten changes and gifts to witnesses
Sometimes the "mistake" is a pen mark on the will itself. Any writing, marking or obliteration on a will is presumed to have been made after the will was made. An alteration is valid only if it meets the formal requirements for a witnessed or holograph will, or if the Court validates it under section 38.
A different problem arises if a beneficiary, or the beneficiary's spouse or adult interdependent partner, also witnessed the will. A gift to a witness or to that person's spouse or partner is void as against that person and anyone claiming through them. The gift is not void if at least 2 other individuals witnessed the signature.
The Court can also order under section 40 that the gift is not void. It must be satisfied that the testator knew the person was a witness, intended the gift, and that no improper or undue influence was exercised. An application under section 40 may not be made more than 6 months after the grant unless the Court extends the period.
Deadlines and how the application proceeds
A rectification application may not be made more than 6 months after the date the grant of probate or administration is issued, unless the Court extends the period. The clock runs from the grant, not from the death.
Under the Surrogate Rules, a contentious matter includes caveats, formal proof of a will, disputes over the right to a grant and other estate disputes. Which starting documents apply to a rectification application depends on your situation, so it is worth confirming with a lawyer.
| Item | Rule |
|---|---|
| Rectification deadline | 6 months after the grant, unless the Court extends it |
| Witness gift relief (section 40) | 6 months after the grant, unless the Court extends it |
| Starting documents | Confirm the starting forms with a lawyer |
Costs and what to do next
Under the Alberta Rules of Court, the general rule is that a successful party is entitled to a costs award against the unsuccessful party. As an exception for estates, in Surrogate proceedings the Court may instead order costs to be paid from the estate or by any person who is a party to the application. The costs of a lawyer appointed for a class member are payable from the estate only if the Court specifically orders it. Because costs can be ordered in different ways, weigh the strength of your evidence before you start.
- Find out the date the grant was issued and count the 6 months from it.
- Collect the original will and any drafts, notes or instructions to the person who prepared it.
- Note who prepared the will and who can speak to the testator's instructions.
- Check who witnessed the will and whether any witness, or a witness's spouse or partner, receives a gift.
- Tell the executor and other beneficiaries early, since they may be affected.
- Speak with an Alberta estates lawyer before the deadline passes.
Frequently asked questions
Can a court change a will just because it seems unfair?
No. Rectification requires clear and convincing evidence that the will does not reflect the testator's intentions because of an accidental slip, omission or misdescription, or a failure or misunderstanding by the person who prepared the will. Unfairness alone is not one of those grounds.
How long do I have to apply to rectify a will in Alberta?
An application may not be made more than 6 months after the grant of probate or administration is issued, unless the Court extends the period. Because extensions are not automatic, do not count on one.
Can someone's handwritten changes on the will count?
Any writing or marking on a will is presumed to have been made after the will was made. An alteration is valid only if it meets the formal requirements of section 15 or 16 or the Court validates it under section 38.
Who pays the legal costs of a rectification application?
As an exception to the usual costs rule, in Surrogate proceedings the Court may order costs to be paid from the estate or by any person who is a party to the application. In Surrogate proceedings, the general rule that a successful party is entitled to a costs award against the unsuccessful party sits alongside the Court's power to order costs to be paid from the estate or by any person who is a party to the application.
Sources
- Wills and Succession Act, SA 2010, c W-12.2 (King's Printer) — kings-printer.alberta.ca
- Surrogate Rules, Alta Reg 130/1995 (King's Printer; consolidated to AR 80/2026) — kings-printer.alberta.ca
- Alberta Rules of Court, Alta Reg 124/2010 (King's Printer) — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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