Undue Influence in an Alberta Will Dispute: What Must Be Proven

If you suspect a caregiver, a new friend or another relative pressured someone into changing a will, you are probably worried and short of information. Undue influence is about whether the will truly reflects the free wishes of the person who made it.

This article explains the Alberta court steps that exist for raising the concern, what the Act says about influence, and what evidence is worth gathering. The detailed legal test for undue influence, and who must prove what, comes from court decisions, so a lawyer should confirm how it applies to your facts.

This article covers the law of Alberta.

What undue influence means in plain words

In plain words, the worry is whether the will reflects the will-maker's own free wishes or someone else's pressure. Exactly where the line falls between pressure and ordinary persuasion is worked out in court decisions, so it is worth confirming with a lawyer how it applies to your situation. Capacity is a separate question from influence.

A will-maker must have the mental capacity to make a will. Someone can have capacity and still be pressured, and someone can lack capacity without any pressure at all. Disputes often raise both questions together.

What the statute says about influence

The Wills and Succession Act refers to improper or undue influence in deciding whether a gift to a witness can stand. A gift to a witness, or to a witness's spouse or adult interdependent partner, is void as against that person and those claiming through them. It is not void if at least 2 other individuals witnessed the signature. It also survives if the Court orders under s 40 that it is not void because the testator knew the person was a witness, intended the gift and no improper or undue influence was exercised.

An application under s 40 may not be made more than 6 months after the grant unless the Court extends the period. Beyond this, the broader test for undue influence is built from court decisions, so ask a lawyer how it is applied.

How a dispute reaches the court

There are two common steps. The first is a caveat, which is the Alberta way to stop a grant from issuing. It is filed in Form C3 and may be filed before or after a grant application is made. Anyone can still apply for a grant, but no further steps may be taken on the application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with. A caveat lasts 3 months unless discharged, withdrawn or the Court orders otherwise.

The second is a formal-proof application, where the will is tested in court. A personal representative or an interested person may apply. Filing it stays a non-contentious 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.

After a warning in Form C4, a caveator may file a notice of objection in Form C9 within 10 days of being served. If a timely objection is filed, the matter proceeds as a contentious application. A grant applicant may also seek an order that a caveat is frivolous or vexatious, and the Court may discharge it and award costs against the caveator.

Evidence that tends to matter

At a formal-proof hearing, the person who took instructions for the will can be required to testify. They may be questioned on the testator's instructions, the preparation and signing of the will, and steps taken to assess capacity. The hearing is generally a trial, though it may be in chambers if only death or signing formalities are in issue.

Beyond that, the kinds of material lawyers commonly look at include:

• earlier wills and how the new one differs
• who arranged the appointment with the lawyer and who attended
• who handled the person's finances, medical care and daily life
• medical and care records from around the time of signing
• messages, emails and notes showing what the person said they wanted
• witnesses who saw the person regularly, such as friends, neighbours and care staff

Which of these will carry weight depends on the case, and a lawyer can tell you how a court is likely to view them.

Deadlines, costs and next steps

Several estate deadlines run from the grant of probate or administration, not from the death. A rectification application may not be made more than 6 months after the grant is issued, unless the Court extends the period. An application under s 40 about a gift to a witness has the same 6-month limit after the grant, unless the Court extends it. Whether other limitation periods under the Limitations Act also apply to a will challenge depends on the claim, so it is worth confirming with a lawyer.

On costs, the general rule under the Alberta Rules of Court is that a successful party is entitled to costs from the unsuccessful party, but estate proceedings under the Surrogate Rules have their own costs power. The Court may order costs paid from the estate or by a party. On formal proof, it may penalize a person whose application was frivolous or vexatious, caused undue delay or had no substantial basis.

• Find out whether a grant has been applied for or issued, and the dates.
• Do not distribute or sign anything that releases your rights until you have advice.
• Collect earlier wills, the contested will and the name of the lawyer who prepared it.
• List people who saw the will-maker in their last years and what they observed.
• Ask a lawyer promptly about a caveat or formal proof.

Frequently asked questions