Time Limits to Contest a Will or Estate Claim in Saskatchewan

You have just found out that someone has died, that there is a will, or that a grant of probate has been issued, and you think something is wrong or that you were left out. The first question most people ask is how long they have to act. In Saskatchewan the honest answer is that it depends on what kind of claim you are making.

This article explains the main types of claim, which deadline is confirmed, when a clock generally starts running, and what can happen if you wait too long. It is general information, not advice on your situation. Where a time limit depends on the facts, a lawyer can confirm it quickly, and that is worth doing early.

This article covers the law of Saskatchewan.

Is there one time limit for contesting a will?

No. People use the phrase contesting a will to mean several different things, and each can have its own rules and its own clock. Treating them as one deadline is the most common mistake.

Challenging the will itself

Saskatchewan courts allow a will to be proven in solemn form under Rule 16-48, and a caveat to be filed. In plain terms, these are the tools that let someone with an interest ask the court to require proof that the will is valid and to flag that they object.

The burden of proof matters. Where a will has been duly executed, capacity is presumed, and suspicious circumstances shift the burden to the person putting the will forward, while undue influence and fraud remain the burden of the people attacking the will.

The time limit for this kind of challenge depends on the facts and the type of argument. Do not assume you have years, and do not assume the time has already run out. A lawyer can confirm where you stand.

Dependants' relief and family property claims

A dependants' relief claim is different from saying the will is invalid. Dependants include a legal, common-law or same-sex spouse, children under 18, and adult children who cannot support themselves because of a disability, and they may claim under The Dependants' Relief Act, 1996 where the will makes inadequate provision. The claim accepts the will but asks the court to change what it provides.

A surviving spouse may also have a separate family property claim. Under section 30(2) of The Family Property Act, no application by a surviving spouse for a family property order may be started more than six months after the grant of probate or administration. A spouse who signed a valid waiver cannot apply.

The estate process itself reflects these claims. Distribution may be delayed six months after Letters are obtained where a dependant may claim under The Dependants' Relief Act, 1996 or a spouse may apply for division of family property. Your own deadline may differ, so it is worth confirming with a lawyer.

When does the clock start?

For the family property claim, the clock runs from the grant of probate or administration, not from the date of death and not from the day you heard about the will. So it helps to know the date a grant was issued.

If you do not know whether an application has been made, the Wills and Estates Registry in Regina can search for a $20 fee, lists estate applications filed in Saskatchewan courts since 1905, and takes 1 to 2 weeks. It only lists estates that went through court. A search is not needed for every estate, because probate is not always required. The only asset that absolutely requires it is an interest in land registered solely in the deceased's name, and for other assets the institution decides. Some property, such as joint land with survivorship or insurance with a named beneficiary, passes outside probate altogether.

What happens if you miss a deadline?

For a family property claim, an application started after six months from the grant is outside the rule. Whether any other kind of claim can still be brought after a deadline has passed depends on the facts, so it is worth confirming with a lawyer as early as you can.

Delay also has practical costs even where a formal deadline has not passed. The executor must account to beneficiaries within two years, or pass accounts at the court house if the accounts are disputed. Final distribution cannot occur until the CRA clearance certificate is received, and a legal representative who distributes before getting it can be held personally liable for tax owing, up to the value of what was distributed. Once the estate has been paid out, recovering money from beneficiaries is harder than stopping it from leaving.

• Money may already have been paid to other beneficiaries.
• Evidence about capacity and the circumstances of the will gets harder to find over time.
• Your options for a quick, low-cost resolution shrink.

What to do next

• Write down the date of death and, if you can find it, the date of any grant of probate or administration.
• If you are unsure whether a grant exists, consider a Wills and Estates Registry search.
• Gather what you have: a copy of the will, medical information, correspondence, and anything showing your relationship to the person who died.
• Note whether you are a spouse, a child, a dependant, or a beneficiary under an earlier will, since this affects which claim fits.
• Do not sign a release or accept a final distribution until you have had advice.
• Speak to a Saskatchewan lawyer soon, and tell them about any dates you know, so they can confirm which deadlines apply.

Frequently asked questions