Deadline for a Family Maintenance Claim Against an Alberta Estate

If someone has died and you are a close family member who feels the will, or the intestacy rules, leave you without enough support, timing may be the most important issue. Alberta sets a short window for starting a maintenance and support claim, and it does not run from the date you might expect.

This article explains how that deadline works, what happens if you miss it, how it connects to the personal representative's duties, and the basic steps for starting a claim. It does not cover making a will, and it does not go into how the court sets the amount of support.

This article covers the law of Alberta.

Where the claim comes from and who it is for

Family maintenance and support claims are created by Part 5, Division 2 of the Wills and Succession Act, which covers ss. 87 to 108. 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 a person dies wholly or partly without a will and a family member's share is inadequate.

This is a statutory remedy for people who fit the Act's definition of family member, not a general right to inherit. A person outside that definition has no Part 5 claim, however close the relationship. The definition covers a spouse, an adult interdependent partner, a child under 18, an adult child unable to earn a livelihood because of mental or physical disability, a child aged 18 to under 22 who is a full-time student and cannot withdraw from the parents' charge, and certain grandchildren or great-grandchildren under 18 for whom the deceased stood in the place of a parent.

The 6-month deadline and when it starts

An application must be commenced within 6 months after the grant of probate or administration is issued. The clock runs from the date of the grant, not the date of death. That means the date on the grant is the date to find first.

Because the grant may be issued some time after the death, you may not know the date unless someone tells you. If you think you may have a claim, it is sensible to ask the personal representative whether a grant has been applied for or issued, and to get legal advice early rather than waiting for the paperwork to arrive.

The Act also has a transition rule. Division 2 applies only to deaths on or after February 1, 2012. Earlier deaths are governed by the repealed Family Relief Act or Dependants Relief Act.

Missing the deadline: the late-application exception

The court may allow an application to be made at any time, but only for any part of the estate that has not been distributed as of the date of the application. A late claim is therefore a matter of court discretion, and it is limited to undistributed property.

In practical terms, once assets have been paid out to beneficiaries, a late claim may have much less to reach. Whether the court would allow a late application in your situation depends on the facts, so it is worth speaking with a lawyer quickly if the 6 months has already passed.

How the timing fits with the personal representative's duties

Without consent or a court order, the personal representative may not distribute estate property for 6 months after the grant. Distribution in breach creates personal liability, although reasonable advances are permitted. This lines up with the claim window, so family members generally have a chance to apply before the estate is paid out.

Once notice of an application is served on the personal representative, the estate is subject to any order made. Distribution in breach creates personal liability and a possible offence. Serving notice early is one reason not to wait until the last days of the window.

Starting a claim and what to do next

Under the Alberta Rules of Court, an application under Part 5 is commenced by filing Form C 1 with an affidavit in Form C 2. Forms and wording can change, so confirm them against the current Rules before filing.

A family member can apply on their own behalf. For a family member under 18, a parent or guardian, the Public Trustee, or another person permitted by the Alberta Rules of Court or Surrogate Rules can apply. For a represented adult or incapacitated person, their trustee or another person permitted by those rules can apply.

Notice must be served on the personal representative and all family members, on any other persons who may be interested in or affected by the order, and on the Public Trustee where a person under 18 is interested in the estate. If the Public Trustee must be served, the application cannot proceed until the Public Trustee is represented or has said it will not be.

• Confirm the date of death and whether Division 2 applies (deaths on or after February 1, 2012).
• Find out whether a grant has been issued and note its date.
• Check whether you fit a family member category.
• Gather the will, if any, and details of the estate and your own finances.
• Speak with a lawyer early so the application can be started within the 6-month period and the required notice can be arranged.

Frequently asked questions