Notice of Objection in Alberta: How to Stop Probate Being Granted

If you believe a will is invalid and fear it is about to be probated, you may have heard that you can file a notice of objection. In Alberta the Surrogate Rules work a little differently, and the terms can be confusing.

This article explains what a caveat does, how long it lasts, where a notice of objection actually fits, and what usually happens afterward.

This article covers the law of Alberta.

The caveat is the tool that stops a grant

Under the Estate Administration Act, a person may file a caveat against the issue or resealing of a grant, either before or after an application is made. Under the Surrogate Rules, a caveat is filed in Form C3. The Court fee schedule lists the fee for filing a caveat in surrogate matters at $300.

The phrase notice of objection is not the way the Rules describe stopping a grant. A Form C9 notice of objection is a response that comes later in the process, as described below.

What a caveat does and does not do

• Anyone may still apply for a grant despite a caveat.
• Once 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is filed, no further proceedings may be taken on the grant application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules.
• The clerk sends a copy of any caveat to the person applying for the grant.

A caveat pauses the application. It does not decide whether the will is valid. That question is dealt with through a contentious matter, which includes disputes over the right to a grant and formal proof of a will.

How long a caveat lasts

A caveat remains in force for 3 months from the date it is filed, unless it is discharged or withdrawn or the Court orders otherwise. After it expires or is discharged or withdrawn, the same caveator cannot file another caveat on the same estate without the Court's permission.

This means a caveat is a pause of limited length rather than a lasting block. What you can do beyond that pause depends on your situation, so it is worth confirming with a lawyer. The other tools are listed below.

What happens next: warning, objection and the Court

A person whose grant application is affected by a caveat can ask the Court to require the caveator to show cause why the caveat should not be discharged. The applicant may also serve a warning in Form C4.

If the applicant believes a caveat is frivolous or vexatious, they may seek an order to that effect. The Court may then discharge the caveat and award costs against the caveator.

Other ways to raise a concern

A person interested in the estate may also apply for formal proof of a will, which can include an application to prevent a grant from issuing. Filing a formal-proof application stays a Part 1 application. The Court can also order security for costs in contentious proceedings.

Persons interested in the estate for a formal-proof application include the surviving spouse or adult interdependent partner, adult children, heirs on intestacy, and personal representatives and beneficiaries under the will in question or under a prior grant for that will. While a formal-proof 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. The Court may also require formal proof of a will on its own motion for a Part 1 application, and must state reasons.

Formal proof hearings are generally a trial, though they may be in chambers if only death or signing formalities are in issue. The person who took instructions for the will can be required to give evidence and may be questioned on the testator's instructions, how the will was prepared and signed, and the steps taken to assess capacity.

On a formal-proof application, the Court may decide the following.

• Which will is admitted to probate.
• Whether the deceased died testate or intestate.
• Whether to terminate a Part 1 grant or a personal representative's appointment.
• How costs are directed.

A grant issued after such a decision binds all persons, absent fraud, and an appeal lies to the Court of Appeal. In Surrogate proceedings the Court may order costs to be paid from the estate or by any person who is a party to the application. On formal proof, the Court may penalize a person who required formal proof of the will if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.

What to do next

• Confirm whether a grant application has been made and whether a grant has already been issued.
• Write down why you question the will, such as signing, witnesses or capacity.
• Note the date any caveat is filed, since it lasts 3 months.
• If you are served with a Form C4 warning, note the date, because the response time is 10 days, although the caveator may apply to extend that time.
• Speak with a lawyer quickly, as these timelines are short.

Frequently asked questions