Written by: Rielle L. Gagnon

At law, certain people are permitted to see testamentary documents, such as a will. However, this does not mean that everyone is entitled to view a testator’s will. Therefore, it is important that you understand your legal rights 

In Alberta, the Estate Administration Act, and the Surrogate Rules set out various rules for dealing with the administration of an estate. The Personal Representative(s) (also referred to as executors) are tasked with distributing and accounting for the administration of the estate, among other core tasks.  

Generally, a Personal Representative will be required to apply to the court to have a will probated. Probate is a process by which a will is filed with the court and validated. If the probate application is successful, the court will issue a grant of probate. Probate is not required for all wills. Whether probate is required will depend on various factors, such as the size of the estate, whether the deceased person left a surviving spouse who was their joint tenant in some property, among other considerations. A lawyer will be able to assist you in determining whether a will needs to be probated and can assist you with the probate process.  

What can I do if I suspect that I might be a beneficiary under a will, or have some other interest, but someone is withholding the will?  

If you have not heard from the Personal Representative of an estate, it could be because you are not a beneficiary under the will, or because the will has not been probated.  

In Alberta, a Personal Representative who has not obtained a grant of probate is still required to notify all beneficiaries that they have been named as beneficiaries in the will. The Surrogate Rules require that the beneficiaries be provided with a copy of the will in these circumstances. The Personal Representative’s notice to beneficiaries must be filed in a prescribed court form and contain specific information set out in the Surrogate Rules 

The Surrogate Rules identify various classes of people who could be considered interested persons in an estate for the purposes of estate administration. Individuals who are considered persons interested in the will according to the defined classes of people set out in the Surrogate Rules can request a copy of the will from the Personal Representative. However, if the Personal Representative does not comply with the interested person’s requests, the interested person can apply to the court for formal proof of the will. This type of application can be made regardless of whether the will has been probated.  

The Surrogate Rules also contain rules that allow the court to require a party withholding a testator’s will (often the Personal Representative) to either give sworn evidence in the form of a written affidavit or to appear before the court to explain why the will either should not or cannot be produced.  

The probate and estate administration processes can be stressful for Personal Representatives, as well as for beneficiaries who are not being adequately informed as required under Alberta’s legislation. However, Parlee McLaws’ experienced wills and estate litigation team is happy to assist with your wills and estates needs and walk you through every step of the process.