Can an Adult Child Sue for a Share of a Parent's Estate in Alberta?

Being left out of a parent's will is painful, and many adult children ask whether they can simply go to court and ask for their share. In Alberta the answer is usually no, because the law does not give every child an automatic right to inherit.

There is, however, a narrow claim for certain family members, and some adult children fit within it. This article explains who qualifies, who generally does not, and what to do if you think you might.

This article covers the law of Alberta.

The short answer: no automatic right to inherit

Alberta does not have a rule that every child must receive a share. The claim most people have in mind is a family maintenance and support claim under Part 5, Division 2 of the Wills and Succession Act. It is a statutory remedy for people who fall within the Act's definition of family member, not a general right to inherit, and a person outside that definition has no Part 5 claim however close the relationship.

If a person dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may order that any provision it considers adequate be made out of the estate. The same section applies where someone dies wholly or partly intestate and a family member's share is inadequate, so the claim is not limited to cases with a will.

Which adult children can claim

An adult child, meaning one who is 18 or older, is a family member only in two situations. Outside those two, an able-bodied adult child aged 22 or older has no Part 5 claim.

For the student category, the child must be a full-time student as defined in the Family Law Act and its regulations, and turning 18 does not by itself end the right to claim.

Others who are sometimes asked about

Stepchildren are not named as a category in the list of family members, so a stepchild is not a family member on that basis alone. Whether a particular stepchild was legally adopted, or fits another category, can change the picture, so it is worth confirming with a lawyer.

A grandchild or great-grandchild can apply only if they are under 18 and the deceased stood in the place of a parent to them at death. That means a settled intention to treat the grandchild as their own child, plus a primary home and primary financial support provided by the grandparent, either since birth or for at least 2 years before death.

If you are an adult child who does not fit any category, other legal routes may still exist, such as questions about the validity of the will or how the estate is being administered. Those depend on the facts and are worth raising with a lawyer.

If you do qualify: how the Court decides and the deadline

The Court looks at a list of factors, including the family member's relationship with the deceased, age and health, capacity to contribute to their own support, and entitlement to support from another person. It also considers the deceased's reasons for the gifts they made, including written statements, and any agreement or waiver by the family member. It looks at the size and distribution of the estate as well.

The Court may order periodic payments, a lump sum, or a transfer of specified property, and it can set conditions. An order takes effect as if made immediately on the death.

The application must be commenced within 6 months after the grant of probate or administration is issued, and the clock runs from the date of the grant, not the date of death. The Court may allow a later application, but only for any part of the estate not yet distributed at the date of the application.

Deaths before February 1, 2012 are governed by older, repealed legislation rather than this Division.

What to do next

• Confirm the date of death and whether a grant of probate or administration has been issued, and note the date of the grant.
• Work out honestly whether you fit the disability or full-time student category.
• Gather your parent's will, any letters explaining their wishes, and records of your finances, health and education.
• Do not wait on the deadline; speak to a lawyer early about the 6-month limit.
• Ask the personal representative, in writing, whether any estate property has been distributed.

Frequently asked questions