Can a Will Be Challenged After Probate Is Granted in Alberta?

You may have just learned that a grant of probate has already been issued and that the will is being treated as valid. It is natural to wonder whether the door has closed. In Alberta, it often has not, but the steps and the timing matter.

This article explains how a grant can be questioned, what formal proof of a will means, how the deadlines fit together, and what generally happens to the estate while a dispute is before the Court.

This article covers the law of Alberta.

A grant is not always the final word

Many grants are issued without anyone appearing to object. The Surrogate Rules call these Part 1, or non-contentious, applications. A person interested in the estate may later apply to the Court to set aside a Part 1 grant, to declare an intestacy, or to restrain a personal representative.

Estate disputes, including formal proof of a will and disputes over the right to a grant, are called contentious matters under the Surrogate Rules. They can be brought under Part 2 by filing Form C1 with an affidavit in Form C2.

Formal proof: asking the Court to test the will

Formal proof of a will, also called proof in solemn form, means the will is proved in Court rather than simply accepted. A personal representative or a person interested in the estate may apply for it. The Court can also require formal proof on its own motion for a Part 1 application, and must give reasons.

People who count as interested in the estate for this purpose include the following:

• The surviving spouse or adult interdependent partner.
• Adult children and heirs on an intestacy.
• Personal representatives and beneficiaries under the will in question, or under a prior grant for that will.

Formal proof hearings are generally a trial, although they may be in chambers if only the death or the signing formalities are in issue. The person who took instructions for the will can be required to testify about the instructions, how the will was prepared and signed, and the steps taken to assess capacity.

What the Court can decide, and how final it is

On a formal-proof application the Court may decide which will is admitted to probate, whether the person died with or without a valid will, and whether to end a Part 1 grant or a personal representative's appointment. It can also decide who pays costs.

A grant issued after that decision binds all persons, unless there was fraud. An appeal goes to the Court of Appeal. If a Part 1 grant is revoked or terminated, the personal representative must return it to the Court unless the Court orders otherwise.

Timing and distribution

Filing a formal-proof application stays a Part 1 application. While it is pending, a personal representative under a Part 1 grant may not distribute estate property unless the Court approves or all interested persons consent. Separately, a personal representative generally cannot distribute property for six months after the grant unless the Court orders otherwise or family members consent, although reasonable maintenance advances are allowed and not following this rule can create personal liability.

Other claims after a grant have their own clocks:

For some other claims, the Limitations Act can bar a claim 2 years after the claimant first knew or ought to have known of the injury, that it was attributable to the defendant's conduct, and that a proceeding was warranted, or 10 years after the claim arose, whichever expires first. Fraudulent concealment can suspend only the 10-year period, and the claimant bears the burden of proof on it. Limitation periods are also suspended while the claimant is a person under disability, and while the claimant is a minor, although minors are subject to notice-to-proceed rules. Which rule applies to your situation depends on the facts.

Costs and lost wills

A successful party is generally entitled to a costs award against the unsuccessful party. In estate matters the Court may order costs to be paid from the estate or by a party. On formal proof, the Court may penalize a person who required proof if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.

If an original will is lost or destroyed, an interested person must generally apply under the formal-proof rule, unless the Alberta Evidence Act s 40 applies or the Court orders otherwise.

What to do next

• Find the date the grant was issued, since several deadlines run from it.
• Get a copy of the grant and the will from the Court file.
• Write down who you are in relation to the person who died (spouse, partner, child, beneficiary).
• Note anything that concerns you: signing, witnesses, capacity, or errors in the document.
• Speak with a lawyer promptly so that no deadline is missed.

Frequently asked questions