Valid Grounds to Contest a Will in Alberta: What Courts Look At

Suspecting that something is wrong with a will is not the same as being able to prove it. Courts look for specific problems, and each has its own rules and evidence.

This article walks through the grounds that Alberta legislation addresses directly, and explains where the answer depends on the facts and a lawyer's advice.

This article covers the law of Alberta.

Lack of mental capacity

An adult may make, alter or revoke a will only if the individual has the mental capacity to do so. If the person did not have capacity when the will was made, that is a basis to challenge it.

What capacity requires, and how it is proven, is developed in court decisions and depends on the facts. A lawyer can explain how it applies to your situation.

Signing and witnessing errors

A formal will must be in writing, and the testator's signature must be made or acknowledged in the presence of 2 witnesses who are both present at the same time, with each witness signing in the testator's presence. Failing these formalities is a ground of invalidity.

There are exceptions to the general rule.

• A holograph will must be wholly in the testator's own handwriting and signed by the testator, and needs no witnesses.
• A member of the armed forces on active service may make a will without witnesses or other formalities.
• Another person may sign for the testator at the testator's direction and in the testator's presence, but that person cannot witness the testator's signature.

A witness must also have the mental capacity to witness. A witness is not disqualified from proving the will only because the witness is an executor or beneficiary, or the spouse or partner of one. That is a separate question from whether a gift to a witness survives: a gift by will to a witness, or to a witness's spouse or adult interdependent partner, is void as against that person and those claiming through them. The gift is not void if the signature is witnessed by at least 2 other individuals, or if the Court orders under section 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.

Gifts to witnesses and signs of pressure

A gift by will to a witness, or to a witness's spouse or adult interdependent partner, is void as against that person and those claiming through them. The gift is not void if at least 2 other individuals witnessed the signature.

The Court may also order that the gift is not void if the testator knew the person was a witness, intended the gift, and no improper or undue influence was exercised. That application may not be made more than 6 months after the grant unless the Court extends the period.

Concerns about pressure or deception on the testator are fact-heavy. How they are proven is a matter for a lawyer to assess.

Changes, revocation and drafting mistakes

A will or part of a will may be revoked only by making another will, a compliant writing revoking it, or destruction with intent to revoke, or at the testator's direction and in their presence. Marriage or entering an adult interdependent partner agreement does not revoke a will, except in the situations section 25(1) of the Wills and Succession Act sets out, so it is worth confirming with a lawyer how that applies to you.

Writing, marking or obliteration on a will is presumed to have been made after the will was made, and an alteration is valid only if it meets the formal requirements of section 15 or 16 of the Wills and Succession Act or the Court validates it under section 38.

The Court may rectify a will by adding or deleting words if satisfied on clear and convincing evidence that it does not reflect the testator's intentions because of an accidental slip, omission or misdescription, or a misunderstanding or failure to carry out instructions by the person who prepared it. A rectification application may not be made more than 6 months after the grant unless the Court extends the period. Where the signature was omitted, rectification is allowed only if the Court is satisfied the testator intended to sign and intended the writing to be their will.

What to do next

• Obtain a copy of the will and note who witnessed it and when.
• Write down what you know about the testator's health and the circumstances of signing.
• Check whether a grant has issued, because several time limits run from that date.
• Ask an Alberta estates lawyer which grounds fit your facts and whether a caveat or formal proof is the right step.

Frequently asked questions