Can You Freeze an Alberta Estate While You Contest the Will?

If you believe a will is invalid, or you think the estate is being handled wrongly, the first worry is often practical: the executor may pay everything out before anyone has tested your concern. Once money is distributed, getting it back can be difficult.

Alberta has several tools that can pause or limit distribution. They work at different stages, they have different time limits, and each carries risks, including costs. This article explains how they fit together in general terms so you can ask better questions of a lawyer.

This article covers the law of Alberta.

Start with the stage the estate is at

Which tool fits depends mainly on whether a grant (the Court document that confirms the personal representative's authority) has been issued yet. Before a grant, you can try to prevent it from issuing. After a grant, the focus shifts to testing the will, setting the grant aside, or restraining the personal representative.

The Surrogate Rules treat caveats, formal proof of a will, disputes over the right to a grant and other estate disputes as contentious matters. A contentious matter can be brought under Part 2 of the Rules by filing Form C1 with an affidavit in Form C2.

Tool 1: filing a caveat

A caveat is the Alberta mechanism for stopping a grant from issuing. A person may file one against the issue or resealing of a grant, before or after an application is made, and it is filed in Form C3. The Court fee schedule lists filing a caveat in surrogate matters at $300.

A caveat does not stop anyone from applying. Despite a caveat, anyone may still apply for a grant, but once the caveat is filed no further proceedings may be taken on that application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules.

• Duration: a caveat stays in force for 3 months from the date it is filed unless it is discharged, withdrawn, or the Court orders otherwise.
• Limit on repeating: after a caveat expires or is discharged or withdrawn, the same caveator cannot file another on the same estate without the Court's permission.
• Warning: the person applying for the grant may serve a warning in Form C4 and ask the Court to require the caveator to show cause why the caveat should not be discharged.
• Response: the caveator may file and serve a notice of objection in Form C9 within 10 days of being served, and may apply to extend that time.

If a timely objection is filed, the matter proceeds as a contentious application. If not, the clerk discharges the caveat and the grant application continues as a non-contentious one under Part 1. The same happens if a caveat simply expires or is withdrawn.

Tool 2: formal proof of the will

Formal proof (also called proof in solemn form) is the Court process for testing whether a will is valid. A personal representative or a person interested in the estate may apply for it. The same application can ask the Court to set aside a Part 1 grant, prevent a grant issuing, declare an intestacy, or restrain a personal representative.

This is where the freeze is strongest. Filing a formal-proof application stays a Part 1 application, and 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.

Persons interested include the surviving spouse or adult interdependent partner, adult children, heirs on an intestacy, and the personal representatives and beneficiaries under the will in question or under a prior grant for it.

Expect a heavier process. Formal-proof hearings are generally a trial, though they may be in chambers if only the death or the signing formalities are in issue. The person who took instructions for the will can be required to testify about the instructions, the preparation and signing, and the steps taken to assess capacity. The Court can decide which will is admitted to probate, terminate a Part 1 grant or a personal representative's appointment, and direct costs.

Tool 3: the six-month rule and family maintenance claims

Separate from challenging a will's validity, the Wills and Succession Act lets the Court order provision from an estate where a family member was not adequately provided for. Only certain people count as a family member, and an adult, able-bodied child is not one.

Unless the Court orders otherwise or family members consent, a personal representative generally cannot distribute estate property for six months after the grant (section 106). Reasonable maintenance advances are allowed, and non-compliance creates personal liability. Once notice of a family maintenance application is given, the estate is subject to any resulting order, and wilful breach is an offence with fines up to $5,000 for individuals and $25,000 for corporations (section 107).

The Court may also make interim orders to protect or preserve estate assets or to suspend administration (section 94). A family maintenance application must be commenced within 6 months after the grant is issued. The Court may allow one at any time, but only for the part of the estate that has not been distributed when the application is made. That is why speed matters: whatever has already been paid out may be out of reach.

Costs and the risk of overreaching

These tools are not free of risk. Generally, a successful party is entitled to a costs award against the unsuccessful party. 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.

• If a caveat is frivolous or vexatious, the Court may discharge it and award costs against the caveator.
• On formal proof, the Court may penalize a person who required it if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.

Whether a challenge has a real basis is a question for a lawyer who can review the will, the circumstances of its signing and the evidence available.

What to do next

• Find out whether a grant has been applied for or issued, and note the date, because several deadlines run from it.
• Write down the 3-month caveat period and the 6-month periods so none is missed.
• Gather the will, any earlier wills, and the name of the person who prepared it.
• Speak with an Alberta estate litigation lawyer early, before anything is distributed.

Frequently asked questions