What Happens to a Family Maintenance Claim in Alberta If the Claimant Dies?

A relative had started a family maintenance claim against an estate, and then that relative died. Your family now wonders whether the claim is over, whether someone can step in, and what to tell the executor. These are fair questions, and the answer depends on details that need to be checked.

This article sets out the framework that applies to these claims in Alberta, the points that stay fixed, and the questions a lawyer will want answered. It does not promise that a claim continues or ends, because that turns on the facts.

This article covers the law of Alberta.

How the claim is set up

Family maintenance claims come from Part 5, Division 2 of the Wills and Succession Act. They are a statutory remedy for defined family members, not a general right to inherit. The Court may order that adequate provision be made from the estate, whether there is a will or not.

The categories of family member are the spouse, the adult interdependent partner, a child under 18, an adult child unable to earn a livelihood because of disability, a full-time student child aged 18 to under 22, and a grandchild or great-grandchild under 18 for whom the deceased stood in the place of a parent. Because the claim is tied to these categories and to the claimant's own circumstances, such as age, health and capacity to support themselves, the Court looks closely at the individual.

Why the claimant's death is a question for a lawyer

Whether a claim carries on after the claimant dies is not something to assume either way. It depends on how far the case had progressed, whether an order had already been made, what property remains undistributed, and who is now involved. A lawyer can review the court file and the dates and tell you what is possible.

Some points do stay fixed and are worth knowing:

• The application deadline is 6 months after the grant of probate or administration, counted from the grant and not from the date of death.
• The Court may allow a late application for any part of the estate not yet distributed.
• Once notice of an application is served on the personal representative, the estate is subject to any order made, and distributing in breach creates personal liability.
• An order takes effect as if made immediately on the death of the person whose estate is being claimed against.

Claims made on someone else's behalf

The Act already recognises that some claims are brought by someone other than the family member. A family member applies 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.

A disabled adult child with a trustee under the Adult Guardianship and Trusteeship Act is a represented adult, and the trustee can apply for them. If the claimant's situation fits one of these descriptions, the person acting for them may matter. The Public Trustee need not apply for a represented or incapacitated person who is adequately supported.

Who must be told and what the Court may do meanwhile

Notice of an application must be served on the personal representative and all family members, on others 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 it is represented or has said it will not be.

The Court can also act to protect the estate while a claim is pending, by preserving assets or suspending administration. If your relative's claim is still open, ask the lawyer whether that kind of step is useful.

What to do next

• Get a copy of what your relative filed, including the application and affidavit, if one was started.
• Find the date the grant was issued and calculate 6 months from it.
• Find out whether the estate has been distributed in whole or in part.
• Tell the personal representative promptly that the claimant has died, and ask them not to distribute.
• Collect the death certificate and the names of anyone who acted for your relative.
• Book time with a lawyer soon, because timing can affect your options.

Frequently asked questions