Can a Maintenance Claim Reach Assets Outside the Will in Alberta?

Many people hold wealth in ways that skip the will: a home owned jointly, a life insurance policy with a named beneficiary, or a registered plan with a designation. If you are a family member who feels under-provided for, or a beneficiary worried about a claim, you may wonder whether those assets are safe.

The answer is not a simple yes or no. This article explains what Alberta's Wills and Succession Act says about the reach of a maintenance order, and where the answer turns on the facts and needs a lawyer's review.

This article covers the law of Alberta.

What a maintenance claim is aimed at

Family maintenance claims come from Part 5, Division 2 of the Wills and Succession Act. If a will does not adequately provide for the proper maintenance and support of a family member, the Court may order that any provision it considers adequate be made out of the deceased's estate. The same applies on an intestacy where the family member's share is inadequate.

An order can benefit one or more family members, can be made from any part of the estate, and applies whether or not there is a will. Unless the Court orders otherwise, the order charges the whole estate.

Only certain people are family members for this purpose, and the claim is a statutory remedy, not a general right to inherit.

Jointly held property

Joint property that passes by survivorship to a surviving co-owner generally falls outside the estate. Because the order is made out of the estate, that can matter a great deal to a claimant and to the surviving owner.

There is one related rule. Where joint owners die at the same time, or it is uncertain who survived, they are deemed to have held the joint property as tenants in common, unless a contrary intention is found.

The Court considers the size and distribution of the estate and any benefits arising from the death. How that applies to a particular jointly held asset depends on the facts.

Property given away or placed in trust during life

When the Court weighs a claim, the size and distribution of the estate includes property the deceased transferred or placed in trust during life. It also includes property the family member received under the Family Property Act, the Dower Act or Division 1. The Court may consider any other matter it considers relevant.

There are protections for outside parties. Property disposed of under a good-faith contract is exempt from the order, except for any value exceeding the consideration. Assignments or charges made before the order are void.

Life insurance and registered plan designations

Whether a maintenance order can reach life insurance proceeds or a registered plan with a named beneficiary is not something this article can answer in general. It depends on how the policy or plan was set up, who was named, and how the Court applies the Act to those facts. A lawyer can review the documents and confirm.

What the Act does say is that the Court looks at benefits arising from the death when it considers the claim. A claimant who is already receiving a significant benefit from the death, or is entitled to support from another person, may find that affects the outcome.

What to do next

Timing matters. An application must be commenced within 6 months after the grant of probate or administration is issued. The Court may allow a late application only for any part of the estate that has not been distributed.

• List every asset and how it is held: sole name, joint, trust, or named beneficiary.
• Gather the policy, plan and title documents showing who was named or who holds the property.
• Note the date of the grant, since the 6-month clock runs from it.
• Check whether the deceased made gifts or transfers during life, as the Court may consider them.
• Speak with a lawyer before assuming an asset is safe or out of reach.

Frequently asked questions