Formal Proof of a Will in Alberta: Who Can Ask and What Happens

Most Alberta estates move through the Surrogate Court without anyone questioning the will. Sometimes a family member doubts that a will was properly signed, or that the person understood what they were signing, or an executor needs the Court to settle the question once and for all. Formal proof, also called proof in solemn form, is the process for that.

This article explains who can apply, what the application can ask for, what happens to the estate while it is pending, how a hearing generally runs and what the Court can decide. It does not cover the legal tests for capacity or undue influence, which depend heavily on the facts and are worth discussing with a lawyer.

This article covers the law of Alberta.

What formal proof is and who can ask for it

A personal representative or a person interested in the estate may apply to the Court for formal proof of a will. In plain words, the Court is asked to examine the will and its signing and decide whether it is valid, rather than simply accepting it on the paperwork.

Under the Surrogate Rules, persons interested in the estate for this purpose include the following:

• The surviving spouse or adult interdependent partner.
• Adult children.
• Heirs on an intestacy.
• Personal representatives and beneficiaries under the will in question, or under a prior grant for that will.

Where someone is a minor or a represented adult, the Public Trustee or trustees stand in for them. Formal proof is also a contentious matter under the Rules, and a contentious matter can be brought under Part 2 by filing Form C1 with an affidavit in Form C2.

What an application can ask the Court to do

An application under rule 75 is not limited to proving a will. The Rules allow an applicant to seek any of the following:

• Formal proof of a will (proof in solemn form).
• An order setting aside a Part 1 (non-contentious) grant.
• An order preventing a grant from issuing.
• A declaration of intestacy.
• An order restraining a personal representative.

The Court may also require formal proof of a will on its own motion for a Part 1 application, and it must give reasons. So formal proof is not always started by a family member; the Court itself can ask for it.

What happens to the estate while the application is pending

Filing a formal-proof application stays a Part 1 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.

This matters for executors and beneficiaries alike. If you are waiting on an inheritance, expect delay. If you are the executor, distributing property during that period without approval or consent is something to avoid. Speak to a lawyer before any distribution.

A caveat is a different tool. A caveat can be filed against the issue of a grant, before or after an application is made, and anyone may still apply for a grant despite it. After a caveat 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. It lasts 3 months from filing unless discharged, withdrawn or the Court orders otherwise. A formal-proof application, by contrast, can ask the Court to decide which will is admitted to probate.

How the hearing works

Formal proof hearings are generally a trial, though they may be heard in chambers if only the death or the signing formalities are in issue.

The person who took instructions for the will can be compelled as a witness. They may be questioned on the testator's instructions, how the will was prepared and signed, and the steps taken to assess capacity. If you took instructions for a will, expect that you could be asked about it. If you are challenging a will, that person's file and memory may matter.

If an original will is lost or destroyed, an interested person must apply under rule 75 unless section 40 of the Alberta Evidence Act applies or the Court orders otherwise.

What the Court can decide, and costs risks

On a formal-proof application the Court may decide which will is admitted to probate, whether the deceased died testate or intestate, terminate a Part 1 grant or a personal representative's appointment, and direct costs. A grant issued after such a decision binds all persons, absent fraud, and an appeal lies to the Court of Appeal.

Where a Part 1 grant is revoked or terminated, the personal representative must return the grant to the Court unless it orders otherwise. The Court may also order security for costs in contentious proceedings.

On costs, the Court may order them to be paid from the estate or by any person who is a party to the application. It may also penalize a person who required formal proof if the application was frivolous or vexatious, caused undue delay or had no substantial basis. The Alberta Rules of Court say a successful party is generally entitled to a costs award against the unsuccessful party, but in Surrogate proceedings the Court has its own power to order costs from the estate, so the outcome depends on your situation. It is worth confirming with a lawyer how costs might apply to you.

What to do next

• Gather the will, any earlier wills, and any grant that has been issued or applied for.
• Note who is a spouse, partner, child or beneficiary, since that decides who counts as interested.
• If you are a personal representative under a Part 1 grant, do not distribute estate property while a formal-proof application is pending unless the Court approves or all interested persons consent.
• Write down who prepared the will and who was present at signing.
• Speak to a lawyer early about whether formal proof, a caveat or another step fits your situation, and about the costs risk.

Frequently asked questions