Caveat Filed Against Your Probate Application in Alberta: How to Respond

You applied for a grant of probate or administration, and then you learned that someone filed a caveat. Suddenly the application is not moving. That is frustrating, especially when bills, property and beneficiaries are waiting, but a caveat is a recognized step in Alberta, and there is a process for dealing with it.

This article explains what a caveat does, how long it lasts, and the steps an applicant can take to respond. It also covers how costs are handled in estate disputes. It does not cover how to file a caveat as an objector, and it does not deal with the court tests for capacity or undue influence.

This article covers the law of Alberta.

What a caveat does to your application

A caveat is the Alberta mechanism for stopping a grant from issuing. 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. It is filed in Form C3 under the Surrogate Rules.

Despite a caveat, anyone may still apply for a grant. However, once the 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is filed, no further proceedings may be taken on the grant application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules.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 applicant for the grant. Read it carefully, because it tells you who filed it.

How long a caveat lasts

A caveat stays in force for 3 months from the date it is filed, unless it is discharged, withdrawn, or the Court orders otherwise. If you do nothing, it may simply run out.

There is a limit on repeat filings. After a caveat expires or is discharged or withdrawn, the same caveator cannot file another caveat on the same estate without the Court's permission. If a caveat expires, is withdrawn or is discharged, the grant application becomes non-contentious and continues under Part 1 of the Surrogate Rules.

The show-cause route: Form C4 warning and Form C9 objection

You do not have to wait out the 3 months. A person whose grant application is affected by a caveat may apply under the Rules requiring the caveator to show cause why the caveat should not be discharged, and the applicant may serve a warning in Form C4.

What happens next depends on the caveator:

• The caveator may file and serve a notice of objection in Form C9 within 10 days of being served with the warning.
• The caveator may apply to extend that time.
• If a timely objection is filed, the matter proceeds as a contentious application.
• If no timely objection is filed, the clerk discharges the caveat and the grant application continues under Part 1.

A contentious matter includes caveats, formal proof of a will, disputes over the right to a grant and other estate disputes. It can be brought under Part 2 of the Rules by filing Form C1 with an affidavit in Form C2. Because of the short deadline and the forms involved, it is sensible to have a lawyer confirm how to serve the warning properly.

If the caveat has no real basis

The applicant for the grant may ask the Court for an order that a caveat is frivolous or vexatious. If the Court agrees, it may discharge the caveat and award costs against the caveator. Whether a caveat meets that standard depends on the facts, so this is a point to discuss with a lawyer before you rely on it.

Costs and what to do next

Filing a caveat in a surrogate matter has a court fee of $300. 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. The Court may also order security for costs in contentious proceedings. The costs of a lawyer appointed for a class member are payable from the estate only if the Court specifically orders it. How costs are ultimately decided depends on your situation, so it is worth confirming with a lawyer.

• Read the copy of the caveat the clerk sent you and note the date it was filed.
• Count 3 months from that date to see when it would expire on its own.
• Decide whether to wait or to serve a Form C4 warning.
• If you serve a warning, diary the 10-day period from the date the caveator is served.
• Gather the will, the death certificate and your grant application documents.
• Ask a lawyer whether the caveat may be frivolous or vexatious and what costs risk you face.

Frequently asked questions