What an Estate Dispute Costs in Alberta: Court Costs and Risks

Contesting a will can be necessary, but it is rarely cheap or quick. Before you commit, you want a realistic picture of what the process involves and where the financial risk sits.

This article does not give prices. Costs depend on the facts, the number of parties and how far the matter goes. Instead, it explains what drives expense and the rules on who pays.

This article covers the law of Alberta.

The court steps that drive expense

Estate disputes in Alberta run through the Surrogate Rules. A contentious matter includes caveats, formal proof of a will, disputes over the right to a grant and other estate disputes, and it is commenced by filing Form C1 with an affidavit in Form C2.

Some steps have fixed court charges. For example, the court fee schedule lists filing a caveat in surrogate matters at $300. Court charges are only one part of the picture, and the total depends on your situation, so it is worth confirming with a lawyer. The common stages are:

• a caveat to stop a grant, which lasts 3 months from the date it is filed unless it is discharged, withdrawn, or the Court orders otherwise
• an application for formal proof of a will
• a hearing, which is generally a trial, though it may be in chambers if only the death or signing formalities are in issue
• an appeal to the Court of Appeal, if someone challenges the result

Who pays: the costs rules

Under the Alberta Rules of Court, a successful party to an application, proceeding or action is entitled to a costs award against the unsuccessful party. The Court may order one party to pay another a costs award and may consider listed factors in deciding it.

Estate cases have a twist. In Surrogate proceedings, the Court may order costs to be paid from the estate or by any person who is a party to the application. That means the estate, and so the beneficiaries, can bear costs in some cases. It also means a person who brings a weak challenge may be ordered to pay personally. A lawyer appointed for a class member is paid from the estate only if the Court specifically orders it.

Financial risks to weigh

Delay, frozen assets and other costs of time

Time itself has a price. Filing a formal-proof application stays a non-contentious application, and while it is pending a personal representative may not distribute estate property unless the Court approves or all interested persons consent. A caveat has a similar effect: after it is filed, no further proceedings may be taken on the grant application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules.

Evidence also drives cost. Capacity disputes often involve medical records, witnesses and sometimes professional opinions, and the amount depends heavily on the case. How far a matter goes before it is resolved also affects the cost, and that is hard to know at the start, so it is worth confirming with a lawyer.

If you are claiming support from the estate rather than attacking the will, the estate may be subject to any resulting order once notice of the application is given, and the Court can make interim orders to protect estate assets.

What to do next

Deadlines affect your options, and missing one can end a claim. Rectification and support applications generally must be made within 6 months of the grant unless the Court extends or allows otherwise. Other claims are generally barred 2 years after you first knew or ought to have known of the injury, that it was attributable to the other party's conduct, and that a proceeding was warranted, or 10 years after the claim arose, whichever expires first. The 10-year period is suspended while the other party fraudulently conceals the injury, and limitation periods are also suspended while the claimant is under a disability or is a minor, subject to notice-to-proceed rules.

• Ask a lawyer for a staged budget, covering each step rather than one total.
• Ask how costs awards may apply if you do not succeed.
• Find out the size of the estate relative to the likely expense.
• Ask whether settlement or mediation is realistic before filing.
• Confirm every deadline in writing before you decide.

Frequently asked questions