What Happens If a Will Is Found Invalid in Alberta?

If you are a beneficiary and you hear that a will may be thrown out, the first question is usually who gets the estate instead. The honest answer is that it depends on why the will failed and on what other documents exist.

This article explains the common reasons an Alberta will is found invalid, what the Court can decide when that happens, and the options and deadlines that may sit alongside it. It is general information, not advice on your situation.

This article covers the law of Alberta.

Why an Alberta will can be found invalid

Two main problems come up. The first is capacity: an adult may make, change or revoke a will only if the individual has the mental capacity to do so. The second is form: a formal will must be in writing, and the testator's signature must be made or acknowledged in front of 2 witnesses who are 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 witnessing rule. A holograph will must be wholly in the testator's own handwriting and signed by the testator, and it needs no witnesses. A member of the armed forces on active service may make a will without witnesses or other formalities.

Whether capacity or influence was actually a problem in a particular case is a question of evidence. A lawyer can tell you how those questions are approached.

A problem with one gift is not always a problem with the whole will

Sometimes only part of a will fails. 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. The gift is not void if the signature is witnessed by at least 2 other individuals. It also is not void if the Court orders that it stands because the testator knew the person was a witness, intended the gift, and no improper or undue influence was exercised.

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.

Who inherits when a will is set aside

There is no single automatic answer. On a formal-proof application, the Court may decide which will is admitted to probate and whether the deceased died testate (with a will) or intestate (without one). If another valid will exists, the question is whether it governs. If none does, the Court may decide that the person died without a will, and who benefits from there depends on your situation, so it is worth confirming with a lawyer. Which outcome applies depends on the documents and the facts.

The Court may also terminate a grant that was issued without a contest, or end a personal representative's appointment, and it can direct costs. Where a Part 1 (non-contentious) grant is revoked or terminated, the personal representative must return the grant to the Court unless the Court orders otherwise. A grant issued after such a decision binds all persons, absent fraud.

Other routes if the will is imperfect but not invalid

• Rectification: the Court may add or delete words if it is satisfied, on clear and convincing evidence, that the will 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.
• Rectification has a limit: where the testator's signature was omitted, it is allowed only if the Court is satisfied the testator intended to sign and intended the writing to be their will.
• Family maintenance: the Court may order provision from the estate if the will did not make adequate provision for a family member's proper maintenance and support. An adult, able-bodied child is not a family member for this purpose.

A rectification application may not be made more than 6 months after the grant of probate or administration is issued, unless the Court extends the period. A family maintenance application must be commenced within 6 months after the grant is issued, though the Court may allow one at any time for any part of the estate not yet distributed.

What to do next

• Find out whether a grant of probate or administration has been issued, and note the date.
• Collect every will, draft and note you know of, including copies if an original cannot be found.
• Write down who witnessed the will, who prepared it, and when it was signed.
• Avoid distributing or spending estate property until the position is clear.
• Speak with an Alberta estates lawyer early, because costs and deadlines can matter.

Costs can also be a factor. A successful party is generally entitled to a costs award against the unsuccessful party, and in Surrogate proceedings the Court may order costs to be paid from the estate or by a party.

Frequently asked questions