Can Beneficiaries See the Will Before Probate in Alberta?

When someone dies, relatives often want to know what the will says long before any court application is made. Silence from the person named as executor can feel like secrecy, even when they are simply getting organized.

This article explains who is generally entitled to a copy of the will in Alberta, what becomes available once an application is filed, and what the court can do if a will is being kept back. The answer depends on your relationship to the deceased and the stage the estate has reached.

This article covers the law of Alberta.

No general right to inspect before an application

Alberta's Surrogate Rules do not set out a separate right to inspect a will before an application for a grant is made. Family members are among those who must receive a copy of the will with a notice from the personal representative. The rules do not state a deadline for when that notice must be given. How this applies to you depends on your situation, so it is worth confirming with a lawyer. If your situation is unusual, a lawyer can confirm what applies.

Who receives a copy with the notice

A personal representative's notice to a beneficiary may be in Form NGA 1. It must include the deceased's name, residence and date of death, the representative's contact details, the date of the will, a description of the gift, and a statement that debts and claims are paid before gifts. It must be given in a manner likely to bring it to the recipient's attention.

A copy of the will must be included in the notice to the following people:

• A residuary beneficiary.
• Family members.
• A spouse or adult interdependent partner.
• The Public Trustee or other persons described in r. 9.1(4).

A beneficiary of a specific gift only is not listed as entitled to a copy. Where a representative is acting without a grant, the notice must identify the deceased, give the representative's contact information, describe the gift (or cite the Wills and Succession Act or Intestate Succession Act), and state that all gifts are subject to prior payment of debts and other claims. The rules reviewed do not state a deadline for these notices, so timing may depend on the facts.

What becomes available once an application is filed

Unless the court orders otherwise, the clerk must give copies of documents filed in the court to anyone who asks and pays the fee. Because this applies to filed documents, a will is generally available this way only after it has been filed with a grant application.

The application process also brings notice to certain people. The applicant must serve a notice of grant issuing in Form GA7 within 30 days after the grant is issued on each person listed in Form GA1 who requires notification. An inventory in Form GA2 must be served on residuary beneficiaries, beneficiaries on intestacy and persons described in s. 11 of the Estate Administration Act.

Family members with extra protections

When applying for a grant, the applicant must serve a copy of the application and a notice of rights under Part 5 of the Wills and Succession Act on certain people. They include a spouse or adult interdependent partner who is not the sole beneficiary, an adult child unable to earn a living because of physical disability, a child aged 18 to 21 in full-time school and under parental charge, and the Public Trustee and guardian where a minor is affected. A grant must not issue until the court is satisfied this was done.

Where a minor, a person who was a minor at the date of death, or a missing person is interested in the estate, notice must go to the Public Trustee, and the application cannot proceed until the Public Trustee is represented or says it will not be.

When a will is being withheld

If an applicant seeks an order for production of a testamentary document, the court may require a person, by affidavit or by appearing before the court, to explain why it should not be produced or cannot be produced, to state that none has been in their possession, or to give information about its location. The court may also issue a notice to compel attendance or to compel the production of any relevant documents.

If a representative fails to give required notice, the court may order the notice to be given, impose conditions, remove the representative, revoke the grant, or make any other order it considers appropriate.

What to do next

• Ask the named executor politely, in writing, for the notice you are entitled to and keep a copy.
• Work out which category you fall into: residuary beneficiary, family member, spouse or partner, or specific-gift beneficiary.
• Watch for a notice of grant issuing, and check whether the application has been filed with the court.
• If you believe a will exists and is being hidden, get legal advice about asking the court for production.
• Keep a record of every request and reply.

Frequently asked questions