Do I Need a Lawyer for a Family Maintenance Claim in Alberta?

You may be a family member who thinks an estate has not provided for you, or an executor who has been served with a claim. Either way, you are probably asking whether you can handle this on your own to save money. The honest answer is that some parts are manageable and others are technical.

This article walks through the steps in an Alberta claim, flags where mistakes are costly, and suggests how to prepare. It is general information, and a lawyer can tell you what applies to your situation.

This article covers the law of Alberta.

What the process involves

Under the Alberta Rules of Court, a Part 5 application is commenced by filing Form C 1 with an affidavit in Form C 2. It must be commenced within 6 months after the grant of probate or administration is issued. The Court may allow a late application for any part of the estate not yet distributed, but that is a matter of discretion.

Notice must then be served on the personal representative, all family members, other people who may be affected, and the Public Trustee where a person under 18 is interested. If the Public Trustee must be served, the application cannot proceed until it is represented or has said it will not be.

Steps that are harder to do alone

Some questions need careful legal analysis. For example, whether someone is an adult interdependent partner turns on the Adult Interdependent Relationships Act, including a test based on a relationship of interdependence lasting at least 3 years (or of some permanence where there is a child of the relationship by birth or adoption), rules for relatives and an exception for paid care. A former partner is not a family member under that paragraph. A grandchild or great-grandchild qualifies only if they are under 18 and the deceased stood in the place of a parent to them at death, which has its own detailed test.

Parts you can do yourself

• Collect the grant, the will if there is one, and information about the estate.
• Write a timeline of your relationship with the deceased, your health, income and needs, since the Court looks at these.
• Gather proof of your income, expenses and any support you receive from others.
• Keep any written statements by the deceased about their gifts, as the Court may consider the deceased's reasons.
• Mark the 6-month deadline on a calendar.

If you are an executor, you can also keep estate records tidy and hold off on distributions, since early distribution can create personal liability.

Risks of going without help

The main risks are practical. A missed deadline may leave you relying on the Court's discretion, and that applies only to property not yet distributed. An incomplete response to a disclosure request can lead to the application being dismissed for affected family members, or to adverse inferences and costs. An agreement or waiver does not automatically end the matter, since the Court can make an order despite one, so assumptions about what a signed document does can be wrong.

For executors, a mistake is more serious. Distributing in breach can create personal liability, and after service it can also carry a possible offence.

Courts can order support as periodic payments, a lump sum or a transfer of property, with conditions, and periodic payments can be secured, varied or suspended. Those terms are easy to get wrong without guidance.

What to do next

• Confirm the date the grant was issued and the deadline that follows.
• Confirm whether you fit a category of family member.
• Decide whether to get at least a one-time review of your documents from a lawyer.
• Prepare your financial records before anyone asks for them.
• Executors: without consent or a court order, you may not distribute estate property for 6 months after the grant, although reasonable advances are permitted, and once notice of an application is served the estate is subject to any order made, so get advice before paying anyone.

Even if you plan to represent yourself, a lawyer's review of your eligibility and timeline can help you avoid the costly mistakes.

Frequently asked questions