Can an Executor Distribute the Estate While a Will Is Contested in Alberta?

You may be a beneficiary worried that the estate will be paid out before anyone has settled a dispute. Or you may be an executor who has just heard that someone is unhappy with the will and you are not sure whether you can keep going. Both concerns are common, and Alberta law has several tools that can pause or limit distribution.

Which tool applies depends on what has been filed and when. This article walks through the main ones: caveats, formal proof of a will, the six-month waiting period, family maintenance claims and interim court orders. It sticks to the statutory rules and does not deal with whether a will is valid on grounds like capacity or undue influence.

This article covers the law of Alberta.

A caveat: pausing the grant application

In Alberta, a caveat is the mechanism used to stop a grant from being issued, although a formal-proof application can also be used to prevent a grant from issuing. A person may file a caveat against the issue or resealing of a grant, either before or after an application is made. It is filed in Form C3. The Court fee schedule lists filing a caveat in surrogate matters at $300.

A caveat does not stop anyone from applying for a grant, but once it is filed no further steps can be taken on the application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules. Without a grant, an executor generally has nothing to distribute.

A caveat stays in force for 3 months from the date it is filed unless it is discharged, withdrawn, or the Court orders otherwise. After it ends, the same person cannot file another caveat on the same estate without the Court's permission.

Ending a caveat early

A person whose grant application is affected by a caveat can ask the Court to require the caveator to show cause why it should not be discharged. The applicant may also serve a warning in Form C4. The caveator then has 10 days from being served to file and serve a notice of objection in Form C9, and may apply to extend that time.

If a timely objection is filed, the matter proceeds as a contentious application. If not, the clerk discharges the caveat and the grant application continues as a non-contentious one. The grant applicant may also ask for an order that a caveat is frivolous or vexatious, and the Court may discharge it and award costs against the caveator.

Formal proof of a will

A personal representative or a person interested in the estate may apply for formal proof of a will, also called proof in solemn form. The same rule lets someone ask to set aside a non-contentious grant, prevent a grant from issuing, declare an intestacy, or restrain a personal representative.

Filing a formal-proof application stays a Part 1 (non-contentious) 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. The Court can also require formal proof on its own motion for a Part 1 application, and must give reasons.

Interested persons include the surviving spouse or adult interdependent partner, adult children, heirs on an intestacy, and personal representatives and beneficiaries under the will in question. Afterwards, the Court can decide which will is admitted to probate, end a Part 1 grant or a personal representative's appointment, and direct costs.

The six-month rule and family maintenance claims

Even with no caveat or formal-proof application, an executor generally cannot distribute estate property for six months after the grant unless the Court orders otherwise or family members consent. Reasonable maintenance advances are allowed, and failing to comply can create personal liability for the executor.

This waiting period matters because a family member can apply for provision from the estate if the will did not make adequate provision for their proper maintenance and support. That application must be started within 6 months after the grant is issued. Once notice of an application is given, the estate is subject to any resulting order, and a wilful breach is an offence with fines of up to $5,000 for individuals and $25,000 for corporations.

Not everyone qualifies. An adult, able-bodied child is not a family member for this purpose. The Court may also allow an application at any time for any part of the estate that has not been distributed when the application is made.

Court orders and practical next steps

In a family maintenance matter, the Court can make interim orders to protect or preserve estate assets or to suspend administration.

• Caveat: further steps on the grant application stop for up to 3 months unless the Court orders otherwise.
• Formal proof application: a Part 1 application is stayed and distribution needs Court approval or consent of all interested persons.
• Six-month rule: generally no distribution for six months after the grant.
• Family maintenance notice: the estate becomes subject to any resulting order.

• Beneficiaries and family: note the date the grant was issued, since several time limits run from it.
• Beneficiaries and family: get legal advice early if you are thinking of a caveat or a formal-proof application, as costs can be ordered against a losing party.
• Executors: do not distribute until you know whether a caveat, a formal-proof application or a maintenance claim is in play.
• Executors: keep records of any maintenance advances you make.
• Everyone: keep copies of everything filed and served, and note response deadlines such as the 10 days for a notice of objection.

In estate disputes the Court may order costs to be paid from the estate or by a party to the application. A lawyer can explain how these rules apply to your facts.

Frequently asked questions