Written By Barbara J. Stratton, Q.C., Sarah Huot, and Odessa M. O'Dell

There is a common misconception that the testator is free to leave their estate to anyone they choose. While this is largely true, certain family members who were left out or feel they were inadequately provided for under a will do have options under Alberta's Wills and Succession Act (WSA).

Under the WSA, the court has authority to make orders to override the deceased's will, or sections of it, to the extent it is required to provide adequate maintenance and support to certain family members. These claims are referred to as family maintenance and support (FMS) claims.

Who Can Apply

In order to apply for FMS, a person must be a "family member" as defined under section 72(b) of the WSA. This includes a spouse or adult interdependent partner, as defined in the Adult Interdependent Relationships Act (AIRA). It also extends to children of the deceased depending on the child's age or whether the child has a mental or physical disability. Grandchildren and great-grandchildren under 18 years of age can also be eligible for FMS where the deceased has demonstrated an intention to treat the child as their own.

When to Apply

Generally, FMS claims should be started within six months after the grant of probate or administration is issued. That being said, the WSA does give the court discretion to allow an FMS application to be made at any time for any part of the estate that has yet to be distributed at the date of the application.

Factors to be Considered

When considering FMS claims, the courts seek to balance the interests of the deceased's wishes and the need to adequately provide for surviving family members. 

Some factors which the court will consider include: the size of the estate; the income and resources of the various dependants, as well as their needs; the character of the applicants; the nature and duration of the relationship between the family member and the deceased; the age and health of the family member; any legal obligations of the deceased or their estate to support any family member; the cost of living; and the mode of life to which the dependant ought to be accustomed.

It is important to note that the right to FMS is not automatic. While you may have the right to apply for relief, it is ultimately in the discretion of the court. If you are left wondering whether you might be eligible to make an FMS claim, be sure to seek proper legal advice.

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