Can a Child Over 18 Claim Family Maintenance From an Estate in Alberta?

Many families assume that support from a parent stops on a child's 18th birthday. When a parent dies, that raises a real question: can a young adult still ask the estate for support if the will leaves them little or nothing?

In Alberta the answer depends on the child's situation. Two categories of child over 18 can still qualify as family members, and this article explains both.

This article covers the law of Alberta.

Does turning 18 end the right to claim?

Not automatically. The family maintenance and support claim comes from Part 5, Division 2 of the Wills and Succession Act. Under that Part a child under 18 is a family member, and so is a child 18 or older who falls into one of two defined categories.

A child who turns 18 and does not fit either category is outside the definition and has no Part 5 claim. For that reason the details of each category matter.

The full-time student category (18 to under 22)

A child aged 18 to under 22 who cannot withdraw from the parents' charge because they are a full-time student is a family member. 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.

This category covers children aged 18 to under 22. How that age limit applies to your timing depends on your facts, so it is worth confirming with a lawyer. An able-bodied adult child aged 22 or older generally has no Part 5 claim.

• Keep proof of enrolment and course load, such as registration records.
• Keep records showing how you were supported by your parent before death.
• Check the age limits and the Family Law Act definition of full-time student, since this category depends on both.

The disability category

A child 18 or older who is unable to earn a livelihood by reason of mental or physical disability is a family member, and the paragraph states no upper age limit.

If the adult child has a trustee under the Adult Guardianship and Trusteeship Act, they are a represented adult, and the trustee can apply on their behalf. Someone else permitted by the Alberta Rules of Court or Surrogate Rules may also apply for a represented adult. An incapacitated person is served through the Public Trustee.

The Court can consider whether the child is entitled to support from another person. How government disability benefits or trusts affect a claim is a point for the Court's discretion, and a lawyer can advise on the effect on benefits such as AISH.

How a claim works and who can bring it

A family member can apply on their own behalf. For a child under 18, a parent or guardian, the Public Trustee, or another person permitted by the rules can apply. The application is commenced by filing Form C 1 with an affidavit in Form C 2.

Notice must be served on the personal representative and all family members, along with other people who may be affected by the order. Where the Public Trustee must be served, the application cannot proceed until it is represented or has said it will not be.

In deciding, the Court looks at the family member's relationship with the deceased, age and health, and capacity to contribute to their own support. Orders can be periodic payments, a lump sum, or a transfer of property, with conditions the Court considers appropriate.

Deadlines and next steps

An application must be commenced within 6 months after the grant of probate or administration is issued, counted from the grant and not the death. A late application is a matter of court discretion and only reaches estate property not yet distributed. This Division applies only to deaths on or after February 1, 2012.

• Find the date of the grant and mark the 6-month date.
• Collect proof of your category: enrolment records or medical and benefit documents.
• Ask in writing whether estate property is being distributed.
• If you are a parent or guardian of a young claimant, speak to a lawyer promptly about applying for them.
• Keep the will and any written explanation of why the parent made the gifts they did.

Frequently asked questions