Your mother passes away. You show up for the funeral, grieve with your siblings, and then a week later someone hands you a will you have never seen before. The will names her caregiver, who she met two years ago, as the sole beneficiary. Everyone else is cut out.
Something feels off. Can you actually do anything about it?
In Alberta, yes. The Wills and Succession Act, SA 2010, c W-12.2 sets out how wills are made and when a court can set one aside. Challenging a will is not easy, and it is not always the right fight to pick. But the law leaves real room for that unsettled feeling when a will does not line up with who your loved one actually was.
Here is what that looks like in practice.
The Will Has to Be Properly Made in the First Place
Before you get to any of the more dramatic grounds of challenge, a will has to clear the basic threshold of being properly executed. Section 14 of the Wills and Succession Act requires the will to be in writing and signed by the testator. Section 15 requires two witnesses to be present together, to see the testator sign, and to sign it themselves afterward. Section 20 says those witnesses need the mental capacity to understand what they are doing and cannot be beneficiaries or their spouses.
There is an important escape hatch. Under section 37 of the Act, a court can still validate a will that missed one of these formalities if the document plainly reflects the testator’s intention. The Alberta Law Reform Institute calls this “substantial compliance,” and it is a common sense response to the reality that perfectly executed wills are rarer than we like to admit. The flip side is just as true. If the execution was sloppy and the intent cannot be clearly shown, the court can refuse to validate the document at all.
A handwritten will, which section 16 calls a holograph will, does not need witnesses at all. It just needs to be entirely in the testator’s handwriting and signed by them. A lot of informal home-made wills fail at exactly this step: people type something up, sign it alone, and call it a will. It is not one.
The Grounds That Actually Show Up in Court
Once execution is out of the way, there are a handful of substantive grounds that come up again and again in Alberta estate litigation. You do not need to memorize them, but it helps to know what you are looking at.
Lack of testamentary capacity. The testator has to understand what they are doing at the moment of signing. The test comes from an English case that we still use today, Banks v. Goodfellow (1870), LR 5 QB 549. The testator must understand that they are making a will, grasp the general extent of their property, recognize the people who might reasonably expect to benefit, and not be operating under a delusion that distorts the disposition. Capacity is also task-specific. Someone with early dementia may have had enough of a lucid window on a given morning to make a simple will, even if they could not manage their finances by the afternoon. The evidence from the drafting lawyer, the treating physician, and close family is usually decisive.
Undue influence. This one gets misunderstood a lot. Undue influence is not persuasion or a bit of pressure from a relative. It is coercion, the kind that overrides the testator’s own will so that the document really reflects the influencer’s wishes instead. Direct evidence is rare. Courts look at the circumstances: who was isolating the testator, who drove them to the lawyer, whether they had any independent advice.
Knowledge and approval. Even a testator with full capacity has to actually know what is in their will and agree to it. If they could not read the language the will was drafted in, or if the signing was rushed, or if whole clauses were skipped when the document was read to them, this ground can apply.
Fraud or forgery. Exactly what it sounds like. A swapped page, a faked signature, a testator misled about what they were signing.
Revocation. A later valid will displaces an earlier one. So can destruction of a will with the intent to revoke it. If a more recent document surfaces, that changes everything.
”Suspicious Circumstances” Change Who Has to Prove What
This is the part most people do not know, and it matters more than anything else on this page.
Ordinarily, the person challenging a will carries the burden of proof. If you claim the testator lacked capacity, you have to show it. But the Supreme Court of Canada in Vout v. Hay, [1995] 2 SCR 876 set out a different rule when “suspicious circumstances” surround the making of the will. Think of things like a brand new will signed days before death, a dramatic departure from every earlier version, a beneficiary who arranged the lawyer meeting, or a testator in sharp cognitive decline. In those situations, the presumption of knowledge and approval falls away, and the burden shifts to the person propounding the will to show that it really is valid.
That shift is often the entire case. In Alberta estate litigation, a well-pleaded set of suspicious circumstances is frequently the difference between a claim that goes somewhere and one that does not.
How You Actually Challenge a Will
The formal mechanism in Alberta starts with a caveat. The Surrogate Rules, Alta Reg 130/1995, govern the probate process, and a caveat is a written notice filed with the Surrogate Court (a division of the Court of King’s Bench) telling the court that you oppose the grant of probate. Caveats still have to be filed on paper, even though the rest of probate has moved onto the Surrogate Digital Service platform. That is a quirk of the current system.
Once a caveat is in, the probate application is halted. You then have twenty days from receiving notice to serve and file a notice of objection setting out your grounds. Miss that window and the caveat is discharged, and the application resumes as if nothing happened. File it in time and the matter becomes contentious, which in plain terms means a full lawsuit is now underway.
From there, it is a regular Court of King’s Bench action: pleadings, disclosure, questioning, affidavit evidence, expert reports where relevant, and, rarely, a trial. Most estate cases settle long before trial because the costs add up fast and the emotional toll is heavy.
A Word Before You File Anything
Challenging a will is not a bluff. It is expensive, it is slow, and it cuts through relationships already strained by grief. Courts take these cases seriously, but they also take costs seriously, and an unsuccessful challenger can be ordered to pay a share of the other side’s legal fees. If the grounds are thin, sometimes the right answer is to walk away.
That said, when the facts are strong, when capacity was clearly in question, when the will appeared out of nowhere, when a caregiver or new partner was visibly running the show, the law gives you real tools. The sooner you have a lawyer look at the medical records, the drafting solicitor’s file, and the history of earlier wills, the better your footing.
If you are sitting with a will that does not feel right, get in touch. We will tell you honestly what we think of the case before you spend anything going further. You can also read more about our work in estate litigation.