Wills – Alberta Estate and Family Law Blog

Discovering that you’ve been excluded from a loved one’s will can be emotionally devastating and financially worrying. Whether you’re a spouse, child, or other family member who expected to inherit, being left out raises immediate questions about your rights and options. In Alberta, the law provides several avenues for those who believe they’ve been unfairly excluded from an estate, but understanding these options requires careful consideration of the specific circumstances and legal requirements.

Understanding Your Legal Standing

Before taking any action, it’s crucial to understand whether you have legal grounds to challenge the will or claim against the estate. In Alberta, certain individuals have stronger legal protections than others when it comes to inheritance rights.

Spouses and Adult Interdependent Partners have the most robust protections under Alberta’s Wills and Succession Act. If you’re a surviving spouse or adult interdependent partner who has been left out of the will entirely or received what you believe is inadequate provision, you may have grounds for a claim. The law recognizes that spouses have a fundamental right to support from their deceased partner’s estate.

Minor children also have strong potential claims, particularly if they were financially dependent on the deceased or if there are unusual circumstances surrounding their exclusion. However, parents generally have the right to distribute their assets as they see fit, so the bar for successful claims by adult independent children can be higher.

Other family members such as parents, siblings, grandchildren or step-children typically have limited rights to challenge a will unless they can demonstrate they were financially dependent on the deceased or there are exceptional circumstances.

Grounds for Challenging a Will

Several legal grounds exist for challenging a will in Alberta, each with specific requirements and standards of proof.

Lack of testamentary capacity occurs when the will-maker didn’t have the mental ability to understand the nature and consequences of making a will. This might involve dementia, mental illness, or other cognitive impairments that affected their decision-making ability at the time the will was created.

Undue influence happens when someone pressured or manipulated the deceased into changing their will against their true wishes. This often involves situations where a caregiver, family member, or friend used their position of trust to benefit themselves at the expense of other potential beneficiaries.

Fraud or forgery involves situations where the will was created through deceptive means, signatures were forged, or the deceased was misled about the contents of the document they were signing.

Improper execution occurs when the will wasn’t properly witnessed, signed, or prepared according to Alberta’s legal requirements. Technical defects in how the will was created can sometimes invalidate the entire document.

Family Maintenance and Support Claims

Even if you cannot successfully challenge the validity of the will itself, Alberta law provides another avenue through family maintenance and support claims. Under the Wills and Succession Act, certain family members can apply to the court for adequate provision from the estate if they believe the will doesn’t provide appropriate support.

These claims are based on the principle that individuals have moral and legal obligations to provide for their dependents and family members, even after death. The court considers factors such as the relationship between the claimant and deceased, the claimant’s financial needs, the size of the estate, and the deceased’s reasons for the distribution choices made in the will.

Successful family maintenance claims don’t necessarily invalidate the will but can result in court orders redistributing portions of the estate to provide adequate support for eligible family members. As noted above, spouses, adult interdependent partners, minor children and adult children who suffer from a disability which renders them incapable of earning a livelihood can make a claim against the estate if they have been completely or partially excluded from the Will.

Immediate Steps to Take

If you believe you’ve been wrongfully excluded from a will, time is often critical. Alberta has limitation periods that restrict how long you have to take legal action, so prompt action is essential.

Obtain a copy of the will as soon as possible. The executor should provide copies to beneficiaries, but if you’re not named in the will, you may need to request it through the court or your lawyer.

Consult with an experienced estate litigation lawyer who can assess the strength of your potential claim and advise you on the best course of action. Estate litigation is complex and specialized, requiring expertise in both the substantive law and procedural requirements.

Consider the costs and benefits carefully. Estate litigation can be expensive and time-consuming, and there’s always risk involved. Your lawyer can help you understand the potential costs, likelihood of success, and possible outcomes.

Alternative Dispute Resolution

Not all estate disputes need to go to court. Mediation and other forms of alternative dispute resolution can sometimes resolve conflicts more efficiently and cost-effectively than litigation. These approaches can preserve family relationships while still addressing legitimate concerns about the estate distribution.

Many estate disputes arise from misunderstandings, poor communication, or family dynamics rather than clear legal violations. A skilled mediator can help family members work through these issues and reach agreements that address everyone’s core concerns.

Moving Forward

Being left out of a will is never easy, both emotionally and practically. While the law provides various protections and remedies, each situation is unique and requires careful analysis of the specific facts and circumstances involved.

The key is to act promptly while taking time to make informed decisions about how to proceed. With proper legal guidance and a clear understanding of your rights and options, you can determine the best path forward for your particular situation.

Remember that estate litigation is not just about money – it’s often about family relationships, recognition, and closure. Whatever approach you choose, focus on achieving outcomes that align with your values and long-term well-being, not just immediate financial gain.

Disclaimer: This post is intended for informational purposes only and does not constitute legal advice.

In L.T. v D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court dealt with a difficult and challenging application advanced by a surviving spouse for the right to use her deceased husband’s sperm for the purposes of future reproductive use.

The deceased, referred to in the decision simply as Mr. T, died suddenly on October 2, 2018. At the date of his death, the deceased and his wife had been married for three years and the two had recently become parents. It was known to all those who knew the couple that they wanted more children.

The day after her husband’s death, the deceased’s wife contacted a fertility clinic about retrieving her husband’s sperm for future reproductive use and was told that a retrieval of this kind should occur within 36 hours of death and that a court order was required. On hearing an emergency application, the court authorized the removal of the husband’s sperm but ordered that it could not be released, distributed, or used until further order of the court. A further hearing was ordered to address the underlying legal issues.

The decision ultimately rested on the Court’s interpretation of certain provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “AHRA”) and its regulations the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”).

Section 8(2) of the AHRA provides:

Posthumous use without consent

(2) No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The deceased died without a Will and had not provided written consent to the posthumous removal of his reproductive material for the purpose of creating an embryo.

The spouse argued that the court should adopt a broad-based common law and statutory understanding of the term “consent” when interpreting the relevant provisions of the AHRA. However, the Court stated that it could not rely upon the common law where it directly contradicts, or is qualified by, the clear and unequivocal legislative language before it. The language of section 8 of the AHRA is clear. It requires the donor to provide written consent.

Furthermore, the Regulations required the consent to be informed, such that the donor knew that (a) their reproductive material would be posthumously removed and (b) that their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner.

The surviving spouse also argued that there was a legislative gap in the AHRA in that the legislation did not contemplate, or provide for, the type and form of consent that should be required of a donor where the donor has died in sudden and unexpected circumstances, but has previously clearly indicated through their words and actions, while living, their desire to have children with their spouse.

The court concluded that section 8(2) of the legislation covered all posthumous removals of a donor’s reproductive material after death and that there was no legislative gap. The court stated that while in rare and limited circumstances, it may address and provide a solution for situations unanticipated by the legislature at the time of enactment, that was not the case here as the wording of section 8(2) explicitly requires written consent from a donor. There was nothing to suggest that the absence of a provision dealing with a sudden and unexpected death of a donor was a legislative oversight.

Finally, the surviving spouse argued that the sperm removed and stored was property which vested in her. The Court rejected this argument as well stating that the posthumous order authorizing removal and storage for the specific purpose of permitting the parties to make further submissions in this case could not be seen as providing a property interest for the surviving spouse. The reproductive material was held under the supervision of the court and did not vest a property interest to anyone.

Although sympathetic to the surviving spouse, given the clear legislative requirement of written and informed consent by the donor, the Court was unable to grant the spouse’s request to use the reproductive material to create an embryo at a later date.

This case highlights the importance of ensuring that you have an updated Will and other estate planning documents in place, no matter what your age. Advances in technology, particularly reproductive technology, are creating new opportunities for couples to have children, later in life and even after the death. Any couple that may be contemplating having children, whether now or in the future, should review the provisions of the AHRA and the Regulations and take the proper steps to ensure that their wishes are honoured after death.

Tag: Wills

Left Out of a Will in Alberta? Your Legal Rights and Options for Estate Disputes 2025