Can You Claim Against an Estate in Alberta If Left Out of the Will?

Finding out that you were left out of a will, or left very little, is painful. Many people assume that a close relationship is enough to challenge it. In Alberta, the law is narrower than that.

This article explains the main claim available against an estate, who can bring it, who generally cannot, and what to do if you think you may qualify. It is general information, not advice on your situation.

This article covers the law of Alberta.

There is no general right to inherit

The claim people usually have in mind is a family maintenance and support claim under Part 5, Division 2 of the Wills and Succession Act. It is a statutory remedy for certain defined family members. It is not a general right to inherit, and a person outside the definition has no Part 5 claim, however close the relationship.

If a person dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may order that any provision it considers adequate be made out of the estate. The same section applies where someone dies wholly or partly without a will and a family member's share is inadequate.

Who can make a claim

The Act lists the family members who can apply:

• The deceased's spouse.
• The deceased's adult interdependent partner.
• A child under 18, including a child in the womb who was later born alive.
• An adult child who is unable to earn a livelihood because of a mental or physical disability.
• A child aged 18 to under 22 who cannot withdraw from the parents' charge because they are a full-time student.
• A grandchild or great-grandchild under 18 for whom the deceased stood in the place of a parent.

An adult interdependent partner has a claim in the same category as a spouse. Whether someone counts as a spouse for these purposes can depend on the facts, so ask a lawyer if that is your situation.

Who generally cannot claim

Several groups are often surprised to learn they fall outside the list.

• An able-bodied adult child aged 22 or older, or an adult child not in the disability or student categories, has no Part 5 claim.
• A stepchild is not named as a category, so a stepchild is not a family member on that basis alone. Whether another connection applies, such as adoption, is worth confirming with a lawyer.
• A former adult interdependent partner is not a family member under the partner paragraph.
• A grandchild can apply only if under 18 and the deceased stood in the place of a parent to them at death.

For a grandchild, the Act sets out what standing in the place of a parent means. There must be a settled intention to treat the grandchild as their own child. Also, since birth or for at least 2 years before death, the grandchild's primary home had to be with the grandparent, who had to provide the primary financial support.

What the court looks at if you qualify

Qualifying as a family member does not guarantee an order. The Court considers factors such as your relationship with the deceased, your age and health, your capacity to contribute to your own support, and any entitlement you have to support from another person. It also looks at the deceased's legal support obligations, the reasons the deceased gave for the gifts made, including written statements, and any agreement or waiver you signed.

The Court also considers the size and distribution of the estate and any benefits that arise from the death, and it may consider any other matter it finds relevant. A waiver does not necessarily shut the door, because the Court can make an order despite a family member's waiver or agreement to the contrary.

What to do next

Timing is the most important practical point. An application must be commenced within 6 months after the grant of probate or administration is issued, and the clock runs from the date of the grant, not the date of death.

• Write down your relationship to the deceased and which category in the list you may fit.
• Find out whether a grant of probate or administration has been issued, and its date.
• Gather the will, if you have a copy, and any documents showing your dependence or the deceased's support.
• Note any agreement or waiver you may have signed.
• Speak to a lawyer promptly to confirm whether you qualify and how the deadline applies to you.

Frequently asked questions