Family Maintenance and Support Claims Against an Estate in Alberta
In Alberta, certain family members who are left out of a Will or not adequately provided for may have the right to make a family maintenance and support claim against the Estate.
While many people believe they are free to leave their Estate to whomever they choose, this is not always the case. The Wills and Succession Act (WSA) allows eligible family members to seek financial support if they have not been properly provided for.
Under the WSA, the court has broad authority to make orders it considers appropriate to ensure adequate maintenance and support is provided from the Estate.
Proving Your Claim
The right to Family Maintenance and Support is not automatic. While family members have the right to apply for maintenance and support, the courts have the ultimate discretion in deciding the merits of any claim. The onus is on the applicant to satisfy the court that the deceased’s Will does not adequately provide for the proper maintenance and support of the applicant.
Free Consultation
If you believe you have not been properly provided for by a deceased family member, and would like further information on your rights, or if you are the Personal Representative, beneficiary, or an interested person of an Estate seeking to defend the Estate from a family maintenance and support claim, please contact us for a free consultation at: (403) 288-0009 or by email at murray@bodnaruklaw.com
Who Can Apply
In Alberta, a person applying for family maintenance and support must qualify as a “family member” under the Wills and Succession Act (WSA). Eligible individuals may include:
A spouse or adult interdependent partner (AIP);
Children of the deceased, depending on their age or whether they have a physical or mental disability; and
Grandchildren or great-grandchildren under the age of 18, where the deceased demonstrated an intention to treat them as their own.
Whether a person qualifies will depend on the specific facts of each case.
Factors for the Court to Consider
In Alberta, family maintenance and support is paid out of a deceased’s Estate. Determining the adequacy of maintenance and support can also take into account assets outside of an Estate, including property transferred by beneficiary designation, survivorship, or otherwise, or such or any benefits (such as insurance) paid as a result of death.
In assessing proper maintenance and support, a court should not assume government funded programs such as Assured Income for the Severely Handicapped (AISH) and Canada Pension Plan (CPP) will always be available to a family member.
When considering Family Maintenance and Support claims, the courts attempt to balance the interests of the deceased’s wishes with the need to adequately provide for surviving family members. Some factors the courts will consider include:
- the size of the Estate;
- other family members;
- the nature and duration of the relationship between the family member and the deceased;
- the age and state of health of the family member;
- any legal obligations of the deceased or their Estate to support any family member;
- other sources of income of the family members; and
- the mode of life the family member “ought” to be accustomed to.