Can You Be Disinherited in Alberta? Your Rights as a Family Member

Finding out you have been left out of a will can be painful, especially if you were a spouse, partner or child. The natural question is whether the will-maker was free to do that.

Alberta's Wills and Succession Act gives some family members a way to ask the Court for support from the estate. This article explains who qualifies, what the Court looks at, and the deadlines that apply.

This article covers the law of Alberta.

The basic rule: a will is not always the end of the story

The Court may order provision from the estate if the person died without making 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, whether or not there is a will.

The test is about proper maintenance and support, not fairness in a general sense. Being left out does not on its own entitle anyone to a share.

Who counts as a family member

The Act defines a family member narrowly:

• A spouse.
• An adult interdependent partner.
• A child under 18, including a child in the womb who is later born alive.
• An adult child who is unable to earn a livelihood because of disability.
• A child aged 18 to under 22 who is a full-time student and unable to withdraw from parental charge.
• A grandchild or great-grandchild under 18 whom the deceased stood in the place of a parent to.

An adult, able-bodied child is not a family member. A party to a void or voidable marriage is included as a spouse. A grandparent stood in the place of a parent only if they showed a settled intention to treat the grandchild as their own 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 includes someone who 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. A relationship of some permanence with a child of the relationship can also qualify.

What the Court considers and can order

The Court looks at factors such as the nature and length of the relationship, the deceased's reasons for making or not making gifts, the family member's ability to support themselves, any legal support obligation, any agreement or waiver, and the size and distribution of the estate and other benefits. A waiver or contrary agreement does not bar an order, though it is a factor.

Support may be periodic payments, a lump sum or a transfer of property. The Court may make interim orders to protect or preserve estate assets or suspend administration. An order takes effect as if made at death, and the will is treated as varied. If a party ignores a Court request for financial information, the Court can dismiss the claim, draw an adverse inference, or award costs to the other parties.

Deadlines and what happens to the estate

An application must be commenced within 6 months after the grant of probate or administration is issued, and the period runs from the grant, not the death. The Court may allow an application at any time for any part of the estate that has not been distributed.

Unless the Court orders otherwise or family members consent, a personal representative generally cannot distribute estate property for six months after the grant, although reasonable maintenance advances are allowed, and a personal representative who does not comply can be personally liable. Once notice of an application is given, the estate is subject to any resulting order, and wilful breach is an offence with fines up to $5,000 for individuals and $25,000 for corporations.

Minors and represented or incapacitated adults apply through a parent, guardian, trustee or the Public Trustee. Notice must be served on the personal representative and all family members, and the application is deemed made for all served family members unless the Court orders otherwise. These rules apply to deaths on or after February 1, 2012.

What to do next

• Confirm your relationship to the person who died and whether it fits the family member definition.
• Find out whether a grant has been issued and on what date.
• Gather information on your income, needs and any support you received.
• Collect any agreements or waivers you signed.
• Speak with a lawyer early, since the 6-month period can pass quickly.

Frequently asked questions