Contesting a Will In Alberta

A Note on Will Challenges

Anna Dunaeva DLegal Anna Dunaeva May 24, 2022
DLegal Law Office - investigation

Is It Difficult to Contest a Will?

Everyone has the right to manage their affairs as they see fit. It is in our personal freedoms and rights to determine what happens to us, our assets, and our belongings once we have passed on. However, if you suspect that something is not right with a loved one’s will, you may contest it in some scenarios.

Contesting, challenging, or seeking clarification about a will is complicated. Those interested in contesting a will in Alberta must follow specific procedures and conditions. Suppose you are considering contesting a will or are currently contesting a will. In that case, it is crucial to partner with a qualified estate litigation lawyer to approach your case properly.

What You Need to Know About Contesting a Will In Alberta

There must be a valid reason to begin the process of contesting a will in Alberta. If there is no will or the will is not valid, you will need to enter into the litigation process.

For a will to be valid, it must — at the very least — be in writing as a physical document. It must be dated, and the testator (the person who wrote the will) must be of sound mind and over the age of majority in Alberta. A formal will must signed with two witnesses present who are not a named executor, an executor’s spouse, a beneficiary, or a beneficiary’s spouse.

Handwritten or holographic wills can also be valid. They are an alternative to a printed will or a will drafted by a lawyer.

Insufficient Grounds For Contesting a Will

One might want to contest a will, but their reasons may not have solid legal standing. For example, the following are insufficient grounds to contest a will:

  1. The testator did not use a lawyer to create their will. Therefore, although we recommend that you consult a lawyer when making your will to avoid unnecessary estate litigation, there is no legal requirement. All that is strictly necessary for a valid will are the requirements above.
  2. You believe that the will is unfair or that the testator made verbal promises to include you in their will. Unfortunately, there is no legal requirement for a will to be fair. Aside from some exceptional circumstances, the testator is free to decide how to manage their estate. As for verbal promises, they are notoriously difficult to prove.
  3. You are an adult child left out of a parent’s will or another family member of the testator. Adult children cannot contest a will solely based on their exclusion unless they are unable to earn a livelihood due to a physical or mental disability. Likewise, other related parties such as grandchildren cannot contest a will solely due to their relation to the testator. However, they can claim that the will is invalid for other reasons. In some circumstances, this could entitle them to part of the estate.

Ultimately, a will cannot be challenged because you feel the testator was unfair or forgot to include you in their will. However, a will is a binding legal document, so there must be sufficient grounds to contest the will.

Who Can Contest a Will?

Contesting a will is a serious matter. There are certain expectations about who can file to commence estate litigation and the reasonable grounds for doing so. Typically estate litigation is available to the following individuals, albeit under specific circumstances:

  1. A spouse or adult interdependent partner
  2. Adult children
  3. A beneficiary that can demonstrate their financial interest in the estate, for instance, through a previous will
  4. Attorneys, if under an enduring power of attorney
  5. The Public Trustee
  6. Heirs, if the testator died intestate
  7. Trustees of represented adults

Although the above individuals are eligible to contest a will, they still require valid grounds.

What Are the Grounds For Contesting a Will?

Testamentary freedom is a right firmly enshrined in the Alberta court process. Suppose there are insufficient grounds for a legal challenge. In that case, there is little chance of your estate litigation being successful in Alberta courts.

The following are the eligible principal grounds upon which one can contest a will in Alberta courts.

Undue Influence or Duress

Suppose there is a belief that the testator was unduly influenced or under duress when making or changing the will. In that case, this can be grounds for a legal challenge. Undue influence or duress means that another person put pressure on the testator to include or exclude specific provisions within the will.

Although it is technically valid to contest a will based on undue influence or duress, it isn’t easy to prove that other parties had enough influence over the testator. You must confirm with significant evidence that the testator was coerced to the point of acting against their best interest.

Forged Wills and Fraudulent Wills

As one does not legally need a lawyer to write their will, claims of forged and fraudulent wills can emerge. This is why an estate planning lawyer can be useful in the will writing process to avoid challenges down the line.

These claims of forged wills are more common with handwritten wills, also known as holographic wills. Claims need to be substantiated by handwriting experts.

As for fraudulence, this is challenged on the basis of a person of influence lying and giving false information to the testator to influence his testamentary instructions deliberately. As with claims of undue influence, these claims can be challenging to prove in Alberta courts.

Validity Of the Will / Technical Flaws

This is another reason why it is a good idea to seek advice from estate planning lawyers when creating your will. A will must be legally valid to pass through Alberta courts. The three conditions under which a will is legally valid are as follows:

  1. The will must be in writing and created by a testator of the age of majority in Alberta (an adult)
  2. The will must be signed and dated by the testator or an authorized representative of the testator
  3. A formal will (aka printed will) must have been witnessed by at least two people who are not named executors, beneficiaries, or a spouse of either one.

The final condition is not strictly necessary for handwritten (holographic) wills. However, other issues of validity can often arise with holographic wills. These conditions also apply to any changes (known as ‘codicils’) made to the will. Otherwise, they will be deemed invalid.

Due to these strict requirements, it is helpful to enlist the help of an estate planning attorney when planning your will. This can ensure you avoid costly mistakes and unnecessary estate litigation in the future.

A Lack of Mental Capacity

This is the most common ground for contesting a will. One can claim that a testator did not possess the necessary mental capacity to alter or write their last will. If a lack of mental capacity is sufficiently demonstrated to the courts, a will can be declared invalid.

In order to demonstrate a lack of mental capacity, one must demonstrate at least one of the following:

  1. That the testator was suffering from certain mental disorders that impacted or impaired their judgment;
  2. was not of sound mind, memory, or understanding at the time;
  3. did not remember the beneficiaries of the will;
  4. did not understand possible claims from excluded parties against the estate;
  5. did not understand the impact of the will;
  6. or did not understand which property or the extent of the assets being distributed in the will.

Suppose one of these is demonstrated to the satisfaction of the court. In that case, a will can be declared invalid due to mental incapacity. The deceased person’s estate can be distributed through the acts within a prior will or through the court’s intervention.

Inadequate Dependent Support

Alberta’s estate administration laws dictate that dependent family members are entitled to receive adequate support from the testator’s will.

It is not acceptable in Alberta to disinherit a dependant, whatever the reason may be. This can include an adult interdependent such as a spouse or common-law partner, as well as a dependent child. A dependent child can refer to minor children or adult children with a physical or mental disability that renders them dependent upon the testator.

However, the specific amount that constitutes ‘adequate support’ for dependents can depend on various factors. Again, it is a good idea to consult with estate litigation lawyers about your legal options.

How to Contest a Will in Alberta

If you have valid grounds to contest the will, you must apply to the court to challenge it. An estate litigation lawyer can help draft a demand letter on your behalf informing the estate’s executor that you have an interest in the estate.

If you are interested in contesting a will in Alberta, you should do so as soon as possible. Contesting a will becomes much more difficult once probate is granted. Probate generally means the will has been validated in court. Therefore, contesting a will once probate is granted requires introducing significant new evidence into the record.

Contesting a will is a challenging matter. If you are seeking legal help to contest a will in the Alberta court system, please reach out to our team at DLegal. We are ready to help you.

Please note that this is simply a general overview of the subject and does not constitute legal advice. Consult a lawyer for formal advice pertaining to your specific situation.


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