- Being left out of a will is not always the end of the matter, because the Court can order provision from the estate if a family member was not adequately provided for.
- Only certain people are 'family members', and an adult, able-bodied child is not one of them.
- A family maintenance application must generally be commenced within 6 months after the grant of probate or administration is issued.
Finding out that a spouse, partner or parent left you little or nothing is painful, and it raises a practical question: can you do anything about it? In Alberta, people are generally free to decide who gets what, but the law sets limits for certain close family members.
This article explains the main claim available under the Wills and Succession Act, who qualifies, the deadline, and what else may be worth checking. Your own situation turns on the facts, so treat this as general information and not a substitute for advice.
This article covers the law of Alberta.
Can the Court change a will that leaves you out?
In some cases, yes. Under the Wills and Succession Act, the Court may order provision from the estate if the person who died did not make adequate provision in the will for a family member's proper maintenance and support. The order can apply to all or part of the estate, and it can apply whether or not there is a will.
Who counts as a family member?
The claim is open only to a 'family member' as the Act defines that term. The table below summarizes the categories.
| Person | Qualifies when |
|---|---|
| Spouse | Included as a spouse |
| Adult interdependent partner | Meets the definition of an adult interdependent partner |
| Child | Under 18, including a child in the womb later born alive |
| Adult child with a disability | Unable to earn a livelihood because of the disability |
| Child aged 18 to under 22 | A full-time student who is unable to withdraw from parental charge |
| Grandchild or great-grandchild | Under 18 and the deceased stood in the place of a parent |
An adult, able-bodied child is not a 'family member' for this purpose. A party to a void or voidable marriage is included as a spouse. A grandparent is treated as standing in the place of a parent only if they showed a settled intention to treat the grandchild as their own child and, from birth or for at least 2 years before death, the grandchild's primary home was with them and they gave primary financial support.
An adult interdependent partner under the Adult Interdependent Relationships Act includes someone who has lived with the other person in an interdependent relationship for a continuous period of 3 years or more, or who has signed an adult interdependent partner agreement. A relationship of some permanence with a child of the relationship can also qualify.
The deadline and what happens to the estate meanwhile
An application must be commenced within 6 months after the grant of probate or administration is issued. The period runs from the grant, not from the date of death. The Court may allow an application at any time for any part of the estate that has not been distributed at the date of the application.
Generally, unless the Court orders otherwise or family members consent, a personal representative cannot distribute estate property for six months after the grant, although reasonable maintenance advances are allowed. Once notice of an application is given, the estate is subject to any resulting order. The Court can also make interim orders to protect or preserve estate assets or suspend administration.
These rules apply to deaths on or after February 1, 2012. Earlier deaths are governed by the repealed statutes.
What the Court considers and what it can order
The Court looks at a range of factors, including the following:
- the nature and duration of your relationship with the person who died
- the deceased's reasons for making or not making gifts to you
- your capacity to support yourself
- any legal support obligation
- any agreement or waiver
- the size and distribution of the estate and any other benefits you receive
A waiver or contrary agreement by a family member does not bar an order, although it is a factor the Court weighs. If the Court makes an order, support may be periodic payments, a lump sum or a transfer of property. The order takes effect as if made at death, and the will is treated as varied.
If the Court asks for financial information and a party ignores the request, that party can face dismissal, an adverse inference or a costs award in favour of the other parties.
What to do next
Family maintenance is not the only route. A will can also be questioned on other grounds, such as lack of mental capacity or failure to meet the signing and witnessing formalities. Whether any of those apply depends on the facts, and a lawyer can help you assess them.
- Find out whether a grant of probate or administration has been issued, and when, because the 6-month period runs from that date.
- Work out whether you fit within the 'family member' definition.
- Collect records of your relationship, your finances and any support you received.
- Note any agreement or waiver you signed, since it is a factor even though it does not bar an order.
- Speak with a lawyer promptly about timing, since distribution of the estate may already be under way.
Frequently asked questions
Can an adult child who is healthy and working make a claim?
Not under the family maintenance provisions, because an adult, able-bodied child is not a 'family member'. An adult child who cannot earn a livelihood because of a disability can qualify. A will may still be challenged on other grounds, such as capacity.
Is the 6-month deadline counted from the date of death?
No. An application must be commenced within 6 months after the grant of probate or administration is issued. The Court may allow an application respecting any part of the estate not yet distributed at the date of application.
Does a spouse who signed a waiver lose the right to claim?
A waiver or contrary agreement does not bar an order, though the Court treats it as a factor. How much weight it carries depends on the circumstances.
Can a common-law partner claim?
An adult interdependent partner is a 'family member'. That includes someone who has lived with the other person in an interdependent relationship for a continuous period of 3 years or more, or who signed an adult interdependent partner agreement.
Sources
- Wills and Succession Act, SA 2010, c W-12.2 (King's Printer) — kings-printer.alberta.ca
- Alberta.ca – Wills in Alberta — 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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