Can a Grant of Probate Be Set Aside After It Is Issued in Alberta?

Many people learn that a grant of probate has been issued only after it is done. You may have had no notice, or you may doubt that the will is the deceased's real and valid will. It is natural to wonder whether the grant can be undone.

In Alberta, the Surrogate Rules provide a process for this. This article explains who can apply, what happens to the estate while the application is pending, how the hearing works, and what the Court can order. It does not cover the legal tests for capacity or undue influence, which depend on the facts and are best discussed with a lawyer.

This article covers the law of Alberta.

The application: formal proof or setting aside a Part 1 grant

A personal representative or a person interested in the estate may apply to the Court for formal proof of a will, also called proof in solemn form. The same rule allows an application to set aside a Part 1 (non-contentious) grant, to prevent a grant from issuing, to declare intestacy, or to restrain a personal representative.

The Surrogate Rules treat formal proof and other estate disputes as contentious matters, and a contentious matter can be brought under Part 2 by filing Form C1 with an affidavit in Form C2. The Court can also require formal proof of a will on its own motion for a Part 1 application, and it must give reasons.

If the original will is lost or destroyed, an interested person must generally apply under r 75, unless s 40 of the Alberta Evidence Act applies or the Court orders otherwise.

Who counts as an interested person

For a formal-proof application, persons interested in the estate include the following:

• the surviving spouse or adult interdependent partner
• adult children
• heirs on intestacy
• personal representatives and beneficiaries under the will in question, or under a prior grant for that will

The Public Trustee or trustees stand in for minors and represented adults. If you are unsure whether you fit, a lawyer can confirm, because your position may depend on your relationship to the deceased and on what the will says.

What happens to the estate while the application is pending

Filing a formal-proof application stays a Part 1 application. While it is pending, a personal representative under a Part 1 grant may not distribute estate property unless the Court approves or all interested persons consent.

If you only want to stop a grant from issuing, a caveat is a separate tool. It is filed in Form C3 and generally lasts 3 months unless it is discharged, withdrawn, or the Court orders otherwise.

The hearing and what the Court can order

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 compelled as a witness. That person may be questioned on the testator's instructions, the preparation and signing of the will, and the steps taken to assess capacity.

On the 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
• who pays costs

A grant issued after such a decision binds all persons, absent fraud, and an appeal lies to the Court of Appeal. Where a Part 1 grant is revoked or terminated, the personal representative must return the grant to the Court unless it orders otherwise, and the clerk endorses the grant accordingly.

Costs risk and deadlines

In Surrogate proceedings the Court may order costs to be paid from the estate or by a party to the application. A successful party is generally entitled to a costs award against the unsuccessful party. On formal proof, the Court may penalize a person who required formal proof if the application was frivolous or vexatious, caused undue delay, or had no substantial basis. The Court may also order security for costs in contentious proceedings.

Several related claims have their own time limits, and they run from the grant:

What to do next

• Get a copy of the will and the grant from the Court file or the personal representative.
• Note the date the grant was issued, since several deadlines run from it.
• Write down why you doubt the will or the grant, and who may have relevant information.
• Ask a lawyer whether to apply for formal proof, file a caveat, or pursue a related claim.
• Do not assume the estate is safe to distribute until the options are clear.

Frequently asked questions