How to Contest a Will in New Brunswick: Steps and Court Process

If you believe a parent's will is not valid, the first questions are practical ones. Which court is involved, what do you file first, and how much time do you have?

This article walks through the general process in New Brunswick. Every situation is different, and the detailed court filing steps depend on the facts, so treat this as a map and not a substitute for advice.

This article covers the law of New Brunswick.

Which court hears the dispute

The Probate Court of New Brunswick can grant letters probate, recall or revoke them, and supervise the administration and distribution of estates. It is distinct from the Court of King's Bench but is presided over by a King's Bench judge.

In a contested will, the Probate Court may make interested persons parties to proof of a will in solemn form or to revocation proceedings. Claims for support out of an estate are different. Under the Provision for Dependants Act, a Court of King's Bench judge decides them. So a single family dispute can involve both courts, depending on what you are asking for.

Lodging a caveat before a grant issues

If no grant has been issued yet, a caveat against a grant may be lodged with the Registrar or a probate office clerk. Once it is in place, no proceedings may be taken on the application without notice to the caveator.

• A caveat remains in force six months after lodging unless it is withdrawn, vacated or a notice of intent to contest is filed.
• If the caveator receives a warning, a notice of intent to contest in Form 3D must be filed within ten days of receiving it.
• Filing a caveat or notice of intent to contest costs $25.

Because of that ten-day window, do not leave a warning sitting in the mail pile. Take it to a lawyer the day it arrives.

Contested claims and proof in solemn form

Where a will is challenged, the matter can proceed as a contested claim or as proof of the will in solemn form, which costs $50 to institute. A party served with a citation who does not file a notice of intent to contest is not entitled to notice of further proceedings.

If letters have already been issued, an interested person can apply for a citation requiring the holder to bring the letters into the probate office. Once that citation issues, the holder must not start or continue distribution without leave of the Court. Probate procedure is set out in the Probate Rules under the Probate Court Act, and the Court publishes forms and a checklist. A search into court proceedings costs $10.

The Probate Court follows common law principles where the legislation does not provide otherwise. What you must prove depends on the ground you rely on, which is covered in our article on valid grounds to challenge a will.

Related claims with short deadlines

Sometimes the better route is not to attack the will at all. A dependant, meaning a spouse, a child or another person who was a dependant under the Family Law Act, can ask a King's Bench judge for maintenance and support out of the estate, even against a will. No application may be made later than four months after the death, though a judge may allow a later application for any part of the estate still undistributed if just.

A surviving married spouse may apply to have marital property divided in equal shares as against the estate, within four months of death, extendable if the spouse did not know of the death or was prevented by circumstances beyond their control. This is available to married spouses only. A common-law partner may qualify as a dependant if they cohabited continuously for at least three years with one substantially dependent on the other, or cohabited with some permanence and have a child together. Whether a particular partner qualifies depends on the facts.

These four-month periods run from the death, not from the grant of probate, so they can be running while the executor is still preparing the application.

What to do next

• Write down the date of death and count four months from it right away.
• Find out whether an application for a grant has been filed, and at which probate office.
• Gather the will, any earlier wills, medical records and notes on who was involved in making the will.
• Do not confront the executor in a way that could harden the dispute before you have advice.
• Speak with a New Brunswick lawyer about which court, which forms and which deadlines apply to you.

Frequently asked questions