How the Alberta Surrogate Rules Handle Contested Estates

When people disagree about an estate, the dispute is handled in the Court of King's Bench under the Surrogate Rules. The process has its own forms and terms, which can be confusing if you are hearing them for the first time.

This article walks through the usual path from a first filing to a hearing or trial. Every estate is different, so treat it as a map and not a promise about how your case will go.

This article covers the law of Alberta.

What counts as a contested matter

Under the Surrogate Rules, a contentious matter includes caveats, formal proof of a will, disputes over the right to a grant, and other estate disputes. Contentious matters can be brought under Part 2 of the Rules.

Part 1 is the non-contentious route. If a caveat expires, is withdrawn or is discharged, the grant application becomes non-contentious and continues under Part 1.

Step 1: Starting the proceeding

A contentious matter under Part 2 is commenced by filing Form C1 with an affidavit in Form C2. An affidavit is a written statement of facts sworn or affirmed to be true, so it is worth taking care over what goes into it.

Some people use a caveat first. A person may file a caveat against the issue or resealing of a grant, before or after an application is made, using Form C3. The Court fee schedule lists filing a caveat in surrogate matters at $300.

Step 2: Caveats, warnings and objections

Anyone may still apply for a grant despite a caveat, but no further proceedings may be taken on the application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with under the Rules. A caveat remains in force for 3 months from filing unless discharged, withdrawn or the Court orders otherwise. After it ends, the same caveator cannot file another on the same estate without the Court's permission.

A person whose grant application is affected may serve a warning in Form C4. The caveator may then 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 under Part 1.

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

Step 3: Formal proof and the hearing

A personal representative or a person interested in the estate may apply for formal proof of a will, to set aside a Part 1 grant, to prevent a grant issuing, to declare intestacy, or to restrain a personal representative. The Court may also require formal proof on its own motion for a Part 1 application, and must state reasons.

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. The Court may also order security for costs in contentious proceedings.

Formal proof hearings are generally a trial, although 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, preparation, signing and steps taken to assess capacity.

Outcomes, costs and what to do next

The Court may decide which will is admitted to probate, whether the person died with or without a will, end a Part 1 grant or a personal representative's appointment, and direct costs. A grant issued after the decision binds all persons, absent fraud, and appeal lies to the Court of Appeal. If a Part 1 grant is revoked or terminated, the personal representative must return it to the Court unless it orders otherwise.

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

• Identify whether you are an interested person, such as a spouse, partner, child or beneficiary.
• Collect the will, any earlier wills, and the names of witnesses and the lawyer who took instructions.
• Diarize the 3-month caveat period and the 10-day response period.
• Do not distribute estate property while a formal proof application is pending unless the Court approves or all interested persons consent.
• Get advice from an Alberta lawyer early about forms, evidence and costs risk.

Frequently asked questions