Family Maintenance and Support Claims Against an Alberta Estate

If a parent or spouse died and left a dependent, a minor child or a partner without enough to live on, Alberta law gives the Court a way to step in. The claim is called family maintenance and support, and it comes from the Wills and Succession Act.

This article covers who can apply, how the deadline works, what the Court weighs, and what happens to the estate while a claim is pending. It is general information, and the details of your case matter.

This article covers the law of Alberta.

What the claim is

The Court may order provision from the estate if the person who died did not make adequate provision in the will for a family member's proper maintenance and support. The order can apply to all or part of the estate, with or without a will.

Who can apply

Only a 'family member' can apply. That means:

• a spouse
• an adult interdependent partner
• a child under 18, including a child in the womb later born alive
• an adult child unable to earn a livelihood because of a disability
• a child aged 18 to under 22 who is a full-time student and unable to withdraw from parental charge
• a grandchild or great-grandchild under 18 whom the deceased stood in the place of a parent to

An adult, able-bodied child is not a 'family member'. A party to a void or voidable marriage is included as a spouse. A grandparent stood in the place of a parent only if they showed a settled intention to treat the grandchild as their own child and, from birth or for at least 2 years before death, the grandchild's primary home was with them and they gave primary financial support.

Minors and represented or incapacitated adults apply through a parent, guardian, trustee or the Public Trustee.

The deadline

An application must be commenced within 6 months after the grant of probate or administration is issued. The period runs from the grant, not from the death. The Court may allow an application at any time respecting any part of the estate that has not been distributed at the date of application.

A personal representative 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 non-compliance creates personal liability. Once notice of an application is given, the estate is subject to any resulting order, and wilful breach is an offence with fines up to $5,000 for individuals and $25,000 for corporations.

What the Court considers, and what it can order

The factors include:

• the nature and duration of the relationship
• the deceased's reasons for making or not making gifts to the family member
• the family member's capacity to support themselves
• any legal support obligation
• any agreement or waiver
• the size and distribution of the estate and other benefits

A waiver or contrary agreement does not bar an order, though it is a factor. The Court may make interim orders to protect or preserve estate assets or suspend administration. Support may take the form of periodic payments, a lump sum or a transfer of property, and the order takes effect as if made at death, with the will treated as varied.

Notice must be served on the personal representative and all family members, and the application is deemed made for all served family members unless the Court orders otherwise. If a party ignores a Court request for financial information, the consequences can include dismissal, an adverse inference or a costs award.

Costs and next steps

A successful party is generally entitled to a costs award against the unsuccessful party. In estate proceedings, the Court may order costs to be paid from the estate or by a party to the application. This means costs are a real consideration when deciding whether to proceed.

• Confirm whether a grant has been issued and the date it was issued.
• Check whether you or the child fit within the family member categories.
• If the claimant is a minor, identify the parent, guardian or Public Trustee who would apply.
• Gather evidence of need, income, assets and the relationship with the person who died.
• Ask a lawyer promptly, since distribution may start after six months.

Frequently asked questions