A contested estate is a dispute between people, usually family, over property that belonged to someone who is no longer there to say what they meant, and it follows a court process most people encounter only once in their lives. Keystone Legal brings and defends those claims in the Court of King’s Bench in Calgary, where every contested estate from Calgary and the surrounding communities is heard. The firm represents beneficiaries who believe a will does not reflect the deceased’s intent, family members left without provision, executors facing a challenge, and people who believe the person administering an estate is not doing the job properly.
Where contested estates are heard
Estates in Alberta are administered under the supervision of the Court of King’s Bench, and contested matters are heard by that court in the judicial centre where the grant was issued or sought. For Calgary and the surrounding communities, including Cochrane, Airdrie, Okotoks, Canmore and the rest of the Calgary district, that is the Calgary Courts Centre. A dispute that arises in a family spread across the province is still heard in one place, and which place depends on where the deceased lived, not on where the beneficiaries happen to be.
The lawyer appears there in person, where chambers applications, special applications, and trials in estate matters are argued before justices who hear estate work regularly, and preparation for that courtroom, rather than for a negotiation that might never happen, underpins every contested file at the firm.
Challenging a will
A will can be set aside where the person who made it lacked the capacity to understand what they were doing, where it was the product of pressure that overcame their free will, where they did not know and approve of what it said, or where it was not properly signed and witnessed, and each of those is a separate ground with its own test. Capacity turns on medical evidence and on the recollections of the people who saw the deceased around the time the will was signed. Undue influence turns on who arranged the lawyer, who was in the room, who benefited, and how the new will departed from the old one. Suspicious circumstances surrounding the making of a will shift the burden to the person relying on it to prove that the deceased knew and approved its contents.
The first practical step in most challenges is filing a caveat with the court, which prevents a grant of probate from being issued without notice to the person who filed it. That holds the estate in place while the evidence is gathered and the claim is framed. Where the will was signed without the formalities the Wills and Succession Act requires, the court also has the power to validate it if the evidence shows that it sets out the deceased’s intentions and was meant to be their will, a claim that cuts the other way and that the firm brings as well as defends.
Removing an executor and forcing an accounting
An executor holds the estate for the beneficiaries and owes them a duty to administer it properly, keep accounts, and distribute without undue delay. Where that is not happening, the beneficiaries can apply to the court for an order that the executor pass accounts, which requires a full statement of what came in, what went out, and what remains; the court can disallow improper expenses and charge the executor personally with the difference. Where the problem goes beyond delay, the court can remove the executor and appoint someone else, but only where the administration is genuinely endangered rather than where the beneficiaries would simply have preferred a different choice.
The firm acts on both sides of these applications. An executor doing the job properly but being harried by a beneficiary is entitled to the court’s protection and to have the costs of a baseless application dealt with accordingly.
Claims by family left without adequate provision
A spouse or adult interdependent partner, a minor child, an adult child who cannot earn a living because of a disability, an adult child under twenty-two in full-time education, and a minor grandchild or great-grandchild for whom the deceased stood in the place of a parent can each apply for maintenance and support out of the estate where the will, or the intestacy rules, did not make adequate provision for them. The application must be brought within six months of the grant of probate or administration, and a late application can reach only what has not yet been distributed. The court weighs the size of the estate, the claimant’s needs and means, the deceased’s reasons, and the claims of the other beneficiaries, and can rewrite the distribution as needed.
Joint accounts, transfers and property that never reached the estate
Many estate disputes are not about the will at all, but about assets that passed outside it. A bank account placed in joint names with an adult child, a transfer of land made in the last years of life, or a beneficiary designation changed on an insurance policy or a registered plan can move a large part of the estate away from the people the will names. Where a parent transferred property to an adult child for nothing, the law presumes the child holds it on trust for the estate unless the child can prove it was a gift. Those presumptions, and the evidence that rebuts them, are where many Calgary estate files are won or lost, and they are dealt with alongside the will itself rather than after it.
How a contested estate proceeds
Most estate litigation settles, usually after the documents have been exchanged and each side has seen what the other can prove. The court encourages that, and judicial dispute resolution, in which a justice helps the parties reach terms, is available in Calgary and often effective in family disputes where the money is only part of what is at stake. Where settlement is not possible, the matter proceeds by application or, where the facts are contested, by trial. Costs in estate litigation can be ordered against a party or paid from the estate, depending on how the dispute arose and how it was conducted, so it is worth seeking advice before taking a position.
Where the firm can act
Contested estate matters are taken where the file proceeds through the Calgary Courts Centre, which covers Calgary and the communities of the Calgary judicial district. For estates administered elsewhere in Alberta, the firm advises and negotiates without appearing, and the Alberta-wide estate disputes page sets out that work. The practice is virtual, so meetings happen by video, telephone and email, with in-person meetings available on request in Cochrane or in Calgary.
If you are facing a contested estate in Calgary, or you think one is coming, call (587) 328-3328.
Frequently Asked Questions
A claim for maintenance and support must be brought within six months of the grant. Other challenges run on the general two-year limitation from when the claim was discoverable, but a caveat should be filed as soon as a challenge is contemplated, since once the estate is distributed there may be nothing left to recover.
Yes. A caveat filed with the court prevents a grant from issuing without notice to you. It is the standard first step, though it has a limited life and must be renewed or followed by a claim, so it buys time rather than settling anything.
Apply to the court for an order that the executor pass accounts. That compels a full accounting, and the court can disallow improper expenses and, where warranted, remove the executor.
It depends on how the dispute arose and how each side conducted it. Costs can be ordered from the estate, or against a party who litigated unreasonably. The old practice of the estate paying everyone’s costs no longer applies as a rule.
