It is a familiar scene in a movie or TV show. A suspenseful “reading of the will” reveals that someone is unexpectedly included or left out, and drama ensues. But what if that happens in real life? Sometimes a family member is left out of a will, or there is no will at all. Do potential beneficiaries have any recourse? An Edmonton wills and estates lawyer may be able to help you understand your options if you are considering challenging a will.
Dying Without a Will
If someone dies in Alberta without a will, the Estate Administration Act outlines who can apply to become the estate administrator, typically a family member or, failing that, a Public Trustee. Once the court has appointed an administrator, Alberta’s Wills and Succession Act governs the distribution of property. First is the payment of any outstanding debts, and then the remaining assets are distributed among the beneficiaries.
When there is no will, the most common beneficiaries are the spouse or partner, and any children. If the deceased (known in this context as the testator) has no spouse or children, the beneficiaries become, in order of priority, surviving parents, descendants of the parents (siblings, nieces, or nephews), grandparents or their descendants, and, finally, great grandparents or their descendants. The property eventually goes to the government if there is no spouse or living relatives.
Types of Wills
There are three types of wills in Alberta; a formal will, a holograph (handwritten) will, and a military will. To be valid, a testator and two witnesses must sign a formal will in each other’s presence. A holograph will must be signed by the testator and does not require witnesses. Finally, active military service members may write and sign a military will without needing witnesses.
A well-constructed will typically includes a list of beneficiaries and their specific awards, names a guardian if there are children, and appoints a representative to oversee the execution of the testator’s wishes. It will also revoke any earlier wills. While the law does not require it, the government recommends consulting a lawyer to help prepare a will to ensure that your wishes are carried out.
Who Can Challenge a Will
Typically, the following parties may challenge a will:
- A surviving spouse or interdependent (common law) partner of at least three years or if they have a child together
- Children of the testator
- A potential beneficiary named in an earlier will
- Potential heirs if the testator died without a will
- Lawyers operating under a power of attorney, the Public Trustee, or trustees of represented adults
Valid Reasons to Challenge a Will
Challenging a will can be a complex and expensive court process; therefore, there must be sufficient grounds for doing so. These can include the following:
- The testator lacked the mental capacity to write a proper will
- Someone inappropriately pressured or influenced the testator to include or exclude provisions within the will
- The will does not adequately provide for dependent family members
- The will was not properly executed and is therefore invalid
- The will has been forged or is fraudulent.
If you suspect that any of these reasons apply to your situation, an Edmonton wills and estates lawyer may be able to help you understand your options and guide you through the necessary steps.
Insufficient Grounds to Challenge a Will
There is no legal requirement that a will be fair, so if you feel that you should have been included in the will, even if you are an adult child of the testator, this may not be sufficient grounds for a challenge.
A verbal promise that you would be a beneficiary may also not be sufficient to prove the testator’s intentions.
While the government recommends the help of a lawyer when creating wills in Alberta, it is not legally required. So, if a testator made their own will, it could still stand up in court.
Contact our Edmonton Wills and Estates Lawyers Today
If you or someone you know is considering challenging a will and you want to explore your options, our Edmonton wills and estates lawyers may be able to help. Contact us today for more information and to schedule a consultation.
* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.
