What Is Formal Proof of a Will in Alberta (Proof in Solemn Form)?

Sometimes an Alberta will is not simply accepted. A family member may doubt how it was signed, or a beneficiary may worry about whether the person understood what they were doing. Or the original will may be missing. In those situations the Surrogate Rules give a formal route to have the Court decide the question.

That route is called formal proof of a will, or proof in solemn form. This article explains in plain terms who can ask for it, what it does to the estate while it is pending, how the hearing usually works, and how costs can be handled. It does not cover caveats or general steps for contesting a will.

This article covers the law of Alberta.

What formal proof means and who can ask for it

A Part 1 grant is the non-contentious kind, and formal proof is one of the ways it can be tested or set aside. Formal proof is the process of putting the will in front of a judge so the Court can decide, after evidence is heard, whether the will is the valid one. A formal-proof application is treated as a contentious matter, and the Rules say a contentious matter includes formal proof of a will.

A personal representative or a person interested in the estate may apply to the Court for formal proof of a will. The same rule lets the applicant ask for other related orders, listed below.

• Formal proof of the will, also called proof in solemn form.
• An order setting aside a Part 1 (non-contentious) grant.
• An order preventing a grant from issuing.
• A declaration that the deceased died without a valid will (intestacy).
• An order restraining a personal representative.

Who counts as an interested person

The Rules spell out who is interested in the estate for this purpose. The list includes the surviving spouse or adult interdependent partner, adult children, people who would inherit on an intestacy, and personal representatives and beneficiaries under the will in question or under a prior grant for that will. Where a person is a minor or a represented adult, the Public Trustee or a trustee stands in for them.

The Court does not have to wait for someone to ask. It may require formal proof of a will on its own motion for a Part 1 application, and it must state its reasons.

Some of the points that can come up are set out in the statute, though how they apply depends on the facts and is worth confirming with a lawyer. For example, an adult may make a will only if they have the mental capacity to do so. A formal will must also be in writing and signed or acknowledged in front of two witnesses who are present at the same time. Failing those formalities is a ground of invalidity.

How the application starts and what it freezes

Any contentious matter can be brought under Part 2 of the Surrogate Rules. The application is started by filing Form C1 together with an affidavit in Form C2.

Filing a formal-proof application stays a Part 1 application. While the application is pending, a personal representative under a Part 1 grant may not distribute estate property unless the Court approves or all interested persons consent. For beneficiaries, this means the estate can be held in place for some time, so it is worth thinking about the timing and the effect on the estate before anyone files.

If a grant is later revoked or terminated, the personal representative must return the grant to the Court unless the Court orders otherwise, and the clerk endorses the grant accordingly.

The hearing and what the Court can decide

Formal proof hearings are generally a trial. 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 and may be questioned about the testator's instructions, how the will was prepared and signed, and the steps taken to assess capacity.

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

A grant issued after that decision binds all persons, absent fraud. An appeal lies to the Court of Appeal.

Costs and what to do next

In Surrogate proceedings, the Court decides how costs are handled, and the costs of a lawyer appointed for a class member are payable from the estate only if the Court specifically orders it. The Court may order costs to be paid from the estate or by any person who is a party to the application. The Court may also order security for costs in contentious proceedings. On formal proof, the Court may penalize a person who required formal proof if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.

If you are thinking about asking for formal proof, or someone has done so against an estate you are involved in, these steps can help:

• Find out whether a grant has been applied for or issued, and whether it is a Part 1 grant.
• Locate the original will, or confirm whether it is lost or destroyed.
• Identify who took instructions for the will and who witnessed it.
• List the interested people, including any minors or represented adults.
• Hold off on distributions until you know whether an application has been filed.
• Speak with a lawyer about your position, the evidence, and the costs risk.

Frequently asked questions