Time Limit to Contest a Will in Alberta and Key Deadlines

If you think a will should be challenged, the clock may already be running. Alberta has no single deadline to contest a will. Instead, different steps have different time limits, and several depend on when the grant of probate or administration was issued.

This article sets out the deadlines that commonly matter, how they interact, and the exceptions. Treat it as a map, not a calculator. Your dates, and any extensions the Court may allow, are worth confirming with a lawyer quickly.

This article covers the law of Alberta.

Why there is no single deadline

Challenging a will can involve several different steps: stopping a grant, asking the Court to prove or set aside a will, correcting a mistake, or claiming support from the estate. Each has its own rule. Missing one does not always end the others, but it can close a door permanently.

Many of the periods run from the grant, not from the death. Find out whether a grant has been issued and, if so, its date, because that date anchors most of the periods below.

The main deadlines at a glance

Caveats and objections

A caveat can be filed before or after a grant application, in Form C3. After it is filed, no further proceedings may be taken on the grant application until it expires, is discharged or withdrawn, or is otherwise dealt with under the Rules. It remains in force for 3 months unless discharged, withdrawn or the Court orders otherwise.

If the applicant serves a Form C4 warning, the caveator may file and serve a notice of objection in Form C9 within 10 days of being served. If no timely objection is filed, the clerk discharges the caveat and the grant application continues. Because a caveat is short-lived, it buys time to prepare a court application rather than replacing one.

Family maintenance and the six-month rule

A family maintenance and support application must be commenced within 6 months after the grant of probate or administration is issued. The Court may allow an application at any time for any part of the estate that has not been distributed at the date of application. Do not rely on that exception, since it depends on the estate's status and the Court's decision.

Other points that affect timing:

• Unless the Court orders otherwise or family members consent, a personal representative generally cannot distribute estate property for six months after the grant.
• Once notice of an application is given, the estate is subject to any resulting order.
• These rules apply to deaths on or after February 1, 2012, and earlier deaths are governed by repealed statutes.
• Minors and represented or incapacitated adults apply through a parent, guardian, trustee or the Public Trustee.

General limitation periods

For some civil claims connected to an estate, the Limitations Act sets a general rule. A claim is barred 2 years after the claimant first knew or ought to have known of the injury, that it was attributable to the defendant's conduct, and that a proceeding was warranted, or 10 years after the claim arose, whichever expires first.

There are narrow exceptions. Fraudulent concealment suspends only the 10-year period, and the claimant bears the burden of proof. Limitation periods are also suspended while the claimant is under disability, and while the claimant is a minor, subject to notice-to-proceed rules. Whether this general rule applies to your situation, or whether another statute sets a shorter period, depends on the facts and should be confirmed with a lawyer.

What to do next

• Find out whether a grant has been issued and write down its date.
• Count 6 months from that date and mark it on your calendar.
• If a Form C4 warning has been served on you, note the 10-day response period.
• Record when you first learned of anything you may want to claim.
• Speak with a lawyer early, since extensions are decided by the Court and are not automatic.

Frequently asked questions