1. What Does Alberta Law Say?

2. Most Common Grounds For Challenging a Will

3. How the Process Works

4. Common Mistakes

5. Costs and Considerations

6. When Should You Speak With an Estate Lawyer?

7. How Bridgestone Law Can Help

Introduction

Preparing a valid will is one of the most effective ways to ensure your wishes are carried out after your death. Many people assume that once a will has been properly signed, it cannot be questioned or changed. While that is often true, there are circumstances where a will can be challenged in Alberta.

A successful challenge does not occur simply because a family member is disappointed with the contents of the will or believes the distribution is unfair. Alberta courts generally respect a person's right to decide how their estate should be distributed. However, the law also recognizes that there are situations where a will may not accurately reflect the deceased's true intentions or may not meet certain legal requirements.

For example, a will may be challenged if there are concerns about the deceased's mental capacity when the will was signed, allegations that someone exercised undue influence, questions about whether the will was properly executed, or claims that a family member has not been adequately provided for under Alberta law.

Will challenges can be emotionally difficult and legally complex. They often involve family members, executors, beneficiaries, and other interested parties, and may require extensive evidence regarding the deceased's health, relationships, finances, and intentions.

Understanding when a will can be challenged, who may have the right to bring a claim, and the legal grounds that Alberta courts will consider can help families better understand their rights and responsibilities during what is often an already difficult time.

What Does Alberta Law Say?

Alberta law recognizes that a properly prepared will generally reflects the wishes of the person who made it, known as the testator. For that reason, courts begin with the presumption that a valid will should be respected and carried out according to its terms.

However, that presumption is not absolute.

A will may be challenged where there are recognized legal grounds to question its validity or where legislation gives certain individuals the right to seek relief from the court. Simply believing a will is unfair or being disappointed with an inheritance is generally not enough.

Most Common Grounds For Challenging a Will

Testamentary Capacity

To make a valid will, the testator must generally have the mental capacity to:

• understand they are making a will;

• understand the nature and extent of their property;

• recognize the people who might reasonably expect to benefit from their estate; and

• understand the effect of the decisions being made.

A diagnosis of dementia or another medical condition does not automatically mean a person lacked testamentary capacity. Capacity is assessed based on the individual's abilities at the time the will was signed.

Undue Influence

A will may also be challenged if someone alleges that another person pressured, manipulated, or controlled the testator into making decisions that did not reflect their own free wishes.

Undue influence involves more than persuasion or family discussions. The court will consider whether the testator acted voluntarily or whether another individual exercised such significant influence that the will no longer represented the testator's independent intentions.

Improper Execution

Alberta law establishes formal requirements for executing a valid will.

If those requirements were not met, for example, if the will was not properly signed or witnessed where required, a challenge may arise regarding whether the document should be recognized as the deceased's valid will.

Fraud or Forgery

Although relatively uncommon, allegations that a signature was forged, pages were altered, or the testator was deceived into signing a document may also form the basis of a will challenge.

These cases often require substantial evidence and may involve handwriting experts, witnesses, and other professional evidence.

Family Maintenance and Support Claims

In some circumstances, Alberta legislation allows certain family members or dependents to apply to the court for additional provision from an estate if they believe adequate support has not been provided.

These claims are different from challenging the validity of the will itself. Instead, they ask the court to consider whether the estate should provide additional support despite the terms of the will.

Because several different types of claims can arise after a person's death, it is important to distinguish between a challenge to the validity of the will and a claim seeking a different distribution of the estate under Alberta law.

Ultimately, every will challenge depends on its own facts. The court carefully reviews the available evidence before deciding whether there is a legal basis to set aside the will, uphold it, or make other orders affecting the administration of the estate.

How the Process Works

Step 1: Determine Whether There Are Valid Legal Grounds

The first step is determining whether there is a recognized legal basis for challenging the will.

Simply being unhappy with the terms of the will or believing another beneficiary received more than you did is generally not enough.

Instead, the challenge should be based on recognized legal grounds, such as:

• lack of testamentary capacity;

• undue influence;

• improper execution of the will;

• fraud or forgery;

• suspicious circumstances surrounding the preparation of the will; or

• a claim permitted under Alberta legislation, such as certain family maintenance and support claims.

An estate lawyer can assess the circumstances and advise whether a legal challenge is likely to be appropriate.

Step 2: Gather the Evidence

Will challenges are decided based on evidence rather than suspicion or family disagreements.

Depending on the nature of the claim, relevant evidence may include:

• medical records;

• physician assessments;

• lawyer's file relating to the preparation of the will;

• witness statements;

• previous wills;

• financial records;

• correspondence;

• emails or text messages;

• handwriting analysis; or

• other documents relating to the deceased's intentions or capacity.

The strength of the available evidence often plays a significant role in determining whether a challenge is likely to succeed.

Step 3: Commence the Court Proceeding

If there are valid legal grounds, the person challenging the will may commence a court proceeding.

The executor and affected beneficiaries are typically given notice of the application and have an opportunity to respond.

Depending on the issues involved, the proceeding may require:

• affidavits;

• production of documents;

• examinations under oath;

• expert reports;

• mediation; or

• a trial if the dispute cannot be resolved.

Throughout the process, the Court's role is to determine whether the will is legally valid or whether another order should be made.

Step 4: The Court Reviews the Evidence

The Court carefully considers all of the available evidence before making a decision.

For example, where testamentary capacity is questioned, the Court may review:

• medical evidence;

• testimony from the lawyer who prepared the will;

• evidence from witnesses who observed the signing;

• the deceased's behavior around the time the will was executed; and

• other relevant documents.

Where undue influence is alleged, the Court may examine the relationship between the deceased and the person accused of exerting influence, together with the surrounding circumstances.

Each case is decided on its own facts, and the burden of proving the claim generally rests with the person bringing the challenge.

Step 5: The Court Makes Its Decision

After considering the evidence, the Court may:

• uphold the will as valid;

• declare all or part of the will invalid;

• determine that an earlier valid will should apply;

• make orders relating to family maintenance or support claims; or

• issue other orders necessary to properly administer the estate.

The outcome depends entirely on the evidence presented and the applicable law.

Practical Examples

Example One: Alleged Lack of Capacity

Margaret signs a new will only weeks before her death after being diagnosed with advanced dementia.

One of her children believes Margaret no longer understood the nature of her estate or the effect of the new will. Medical records and evidence from the lawyer who prepared the will become important in determining whether Margaret had the necessary testamentary capacity when the will was signed.

Example Two: Alleged Undue Influence

David becomes increasingly dependent on a neighbor who assists with his daily care.

Shortly before his death, David signs a new will leaving the majority of his estate to the neighbor instead of his family. His children allege that David was pressured into changing his estate plan and commence a legal challenge.

The Court considers the evidence regarding David's independence, the nature of the relationship, and whether the new will reflected his own free and voluntary wishes.

Example Three: A Challenge That Does Not Succeed

Robert leaves the majority of his estate to one daughter because she spent many years helping him manage his affairs and providing daily care.

His other children believe the distribution is unfair and challenge the will solely because they expected a larger inheritance.

After reviewing the evidence, the Court concludes that Robert had full testamentary capacity, signed the will voluntarily, and properly expressed his wishes. Because disappointment alone is not a legal basis for setting aside a valid will, the challenge is dismissed.

Common Mistakes

Assuming an Unfair Will Can Always Be Challenged

One of the most common misconceptions is that a will can be overturned simply because someone believes it is unfair.

In Alberta, individuals generally have the freedom to decide how their estate will be distributed. While there are legal exceptions, a beneficiary's disappointment or disagreement with the deceased's decisions is not, on its own, sufficient to invalidate a will.

Before pursuing a legal challenge, it is important to determine whether recognized legal grounds actually exist.

Waiting Too Long to Obtain Legal Advice

Will challenges often involve important limitation periods and procedural requirements.

Delaying legal advice may affect a person's ability to preserve evidence, protect their rights, or bring a claim within the required timeframe. Anyone who believes there may be valid grounds for challenging a will should seek legal advice as soon as possible after learning of the issue.

Relying on Suspicion Instead of Evidence

Many will disputes arise because family members suspect that something improper occurred.

However, allegations of undue influence, lack of capacity, fraud, or improper execution must generally be supported by evidence rather than assumptions.

Medical records, witness testimony, correspondence, financial records, and the lawyer's file relating to the preparation of the will are often far more persuasive than speculation or family disagreements.

Assuming a Previous Will Automatically Applies

If a court determines that a later will is invalid, that does not necessarily mean the estate will automatically be distributed as someone expects.

Depending on the circumstances, an earlier valid will may apply, or if no valid will exists, the estate may be distributed according to Alberta's intestacy legislation.

The outcome depends on the facts of each case and the legal issues before the Court.

Allowing Family Conflict to Escalate Unnecessarily

Will disputes are often emotionally charged because they arise during a period of grief and involve close family relationships.

Where appropriate, early legal advice, negotiation, or mediation may help resolve issues without the time, expense, and uncertainty of a trial.

Although some disputes require the Court's intervention, others can be resolved through constructive discussions supported by experienced legal counsel.

Costs and Considerations

Will challenges can be legally and emotionally complex.

The overall cost will depend on factors such as:

• the complexity of the legal issues;

• the amount of evidence required;

• whether medical or other expert witnesses are needed;

• the number of parties involved;

• whether the matter settles through negotiation or mediation; and

• whether a trial is ultimately required.

Potential expenses may include:

• legal fees;

• Court filing fees;

• expert witness fees;

• medical record costs;

• mediation expenses; and

• costs associated with obtaining documentary evidence.

Not every will challenge is successful.

If the Court concludes that there are no valid legal grounds for the claim, the unsuccessful party may, in some circumstances, be ordered to pay some of the legal costs incurred by the other parties.

For that reason, obtaining legal advice before commencing a challenge is often an important first step. A lawyer can evaluate the available evidence, explain the applicable law, and help determine whether a claim is likely to have a reasonable prospect of success.

When Should You Speak With an Estate Lawyer?

Professional legal advice may be particularly valuable if:

• you believe the deceased lacked testamentary capacity;

• you suspect undue influence, fraud, or forgery;

• the validity of the will is being questioned;

• you believe you have a family maintenance or support claim;

• you are an executor responding to a will challenge;

• there are multiple competing wills;

• beneficiaries are disputing the administration of the estate; or

• you are uncertain about your rights or obligations following a person's death.

An experienced estate lawyer can assess the facts, explain your legal options, gather the necessary evidence, and guide you through the court process where appropriate.

How Bridgestone Law Can Help

Will challenges require careful legal analysis and strong supporting evidence. While Alberta law generally respects a person's right to decide how their estate will be distributed, there are circumstances where the Court may intervene to determine whether a will is valid or whether additional relief should be granted under the law. Understanding your rights early can help you make informed decisions and avoid unnecessary delays or expense.

Bridgestone Law assists executors, beneficiaries, and family members throughout Calgary and Alberta with will disputes, estate litigation, probate matters, and estate administration. Whether you are considering challenging a will, responding to a claim, or seeking advice about your rights following the death of a loved one, our experienced estate lawyers can provide practical guidance and effective representation tailored to your circumstances.