Inheritance Litigation - Disinherited from the Will
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When you have been effectively disinherited from a recently deceased person’s will, there may be legal recourse available to reverse this apparently improper change. Although there may be legitimate reasons for disinheriting a family member, other than in the most pernicious scenarios is there not the possibility to achieve some form of alteration and achieve some form of inheritance being received by the ostracized person. For in most cases there is something more nefarious or consequential transpiring that led to the individual's 'disinheritance’.
The rationale for someone being disinherited can include:
- the now deceased will drafter having been momentarily overcome by anger our other adverse emotional state
- the now deceased will drafter suffering from a lack of mental capacity at the time their will was re-drafted or amended
- the now deceased will drafter having been under undue influence / pressure from other family members or potential beneficiaries
- misrepresentation or fraud having been perpetrated on the now deceased will drafter at the time that they redesignated beneficiaries and allocations
Contact our law firm today to learn how our legal team can help you deal with inheritance disputes and estate litigation, at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
More on: Actions on Disinheritance - Investigating Disinheritance - Common Alberta Challenges to Disinheritance
Available Actions on Learning of Your Disinheritance
Finding out you have been disinherited can be a distressing experience, but there are several legal avenues to explore if you believe the exclusion was improper or unintended. The first step involves determining whether you were omitted rather than intentionally disinherited, as the law often protects immediate family members who were accidentally left out of a will. This typically occurs when a person creates their estate plan and then subsequently marries or has a child without updating the documents to include the new family member. In such cases, the law may presume the omission was a mistake, allowing the spouse or child to claim a statutory share of the estate as if no will existed at all (especially as to the statutory right to adequate maintenance and support). However, if the document specifically names you and expresses a clear intent to leave you nothing, this particular omitted heir protection usually will not apply.
If the disinheritance was clearly intentional on the face of the document, you may still challenge the validity of the will itself through a formal contest in surrogate court (recognizing that Alberta is a strong proponent of testatmentary freedom). Common grounds for such a challenge include lack of mental capacity, where you must prove the deceased did not understand the nature of their assets or the impact of their decisions at the time of signing. Another frequent basis is undue influence, which involves showing that a third party (such as a deceptive neighbor, a manipulative relative, or a controlling caregiver) exerted such extreme pressure that the deceased's free will was overcome. Other potential grounds include fraud, where the deceased was tricked into signing a document they did not realize was a will, or improper execution, such as a lack of required witnesses or signatures.
Before proceeding with a contest, it is vital to evaluate the presence of a no-contest clause, which is a provision designed to discourage legal challenges by threatening to revoke the inheritance of anyone who disputes the will. For a disinherited person who was left nothing, such a clause often carries little risk since there is no gift to lose; however, if you were left a small token amount, filing a contest could cause you to forfeit that gift if you lose the case. Courts generally only enforce these clauses if the person bringing the challenge lacks probable cause, meaning they do not have a reasonable basis or sufficient evidence to believe their claim would succeed. Balancing the potential for a larger inheritance against the risk of losing a smaller, guaranteed gift is a critical strategic decision in these disputes.
Time is of the essence in estate litigation, as there are strict windows in which a disinherited individual must act to preserve their rights (i.e., an application for Family Maintenance and Support generally must be made within six months from the date the grant of probate or administration is issued). Once a will is admitted to the surrogate court, a formal clock begins ticking (often lasting only a few months), during which you must file your application to revoke probate or contest the document's validity. If this deadline passes, the court may permanently bar your claim, regardless of its underlying merit or the amount of evidence you possess. Consequently, if you suspect foul play or an accidental omission, you should immediately secure a copy of the will and any prior versions of the estate plan to compare changes over time. Gathering medical records, correspondence, and witness testimony early on can provide the foundation needed to meet these rigorous legal deadlines and successfully advocate for your share of the decedent's estate.
Investigating Your Disinheritance
Investigating an unexpected disinheritance begins with a comprehensive forensic review of the testamentary documents and the circumstances surrounding their execution. You should start by obtaining the most recent version of the will or trust, along with any prior versions, to identify when the specific changes to your status occurred. This comparison helps pinpoint whether the disinheritance was a long-standing intent or a sudden, late-life shift in the deceased's estate plan. It is also vital to examine the document for technical irregularities, such as missing signatures or improper witnessing. Any deviation from standard formalities can serve as a primary hook for challenging the document's overall validity.
Once the documents are secured, the investigation must pivot toward the deceased’s mental capacity and medical history during the period the will was drafted. You would look to collect medical records, pharmacy logs, and physician notes that might indicate cognitive decline, dementia, or the influence of heavy sedation. Statements from disinterested third parties, such as long-term neighbors, primary care doctors, or social acquaintances, can provide a clearer picture of whether the testator truly understood the nature of their assets and their familial obligations. If the deceased was suffering from a neurodegenerative disorder (i.e., Dementia, Alzheimer’s, and Parkinson’s) or a general lack of testamentary capacity, the updated will may be subject to being set aside.
The third stage involves a deep dive into the concept of undue influence, specifically looking for a confidential relationship between the deceased and a new beneficiary. You should investigate whether the person who benefited from your disinheritance was also the person providing daily care, managing finances, or isolating the deceased from other family members. Evidence of active procurement (where the beneficiary actually drove the deceased to the lawyer’s office or paid for the new will) is often a powerful evidential factor in these disputes. Financial records should also be audited for any suspicious pre-death transfers or gifts that might suggest the deceased was being coerced or manipulated while in a vulnerable state.
Finally, the investigation should evaluate the potential for fraud or forgery regarding the execution of the estate plan. This can involve hiring a forensic handwriting expert to verify that the signatures on the documents match the deceased’s known handwriting from a similar timeframe. You may also look to interview the attesting witnesses and the drafting professional to determine if the deceased was under duress or if the contents of the document were misrepresented to them before signing. Sometimes, a disinheritance is the result of a fraud in the execution, where a person is led to believe they are signing a power of attorney or a medical release when they are actually signing a new will. Uncovering these deceptive practices requires a methodical approach to tracking the paper trail and the timeline of communication leading up to the final signature.
Common Circumstances for Challenging Disinheritance in Alberta
In Alberta, the principle of testamentary autonomy (the right to choose how to distribute one's estate) is fundamental but not absolute. Under the Wills and Succession Act (Alberta), specifically Section 88, the court may intervene if a deceased person fails to make "adequate provision" for the "proper maintenance and support" of certain family members. This intervention effectively allows a judge to rewrite the distribution of the estate to ensure that legal and moral obligations are met. Unlike some other provinces, Alberta’s legislation is more restrictive regarding who can challenge a will, focusing primarily on those to whom the deceased owed a duty of support during their lifetime.
The most common circumstance for overturning a disinheritance involves dependent family members, such as a spouse, an adult interdependent partner (common-law), or minor children. For these individuals, the court views support not just as the provision of bare necessities, but as the maintenance of the standard of living they enjoyed while the deceased was alive. If a spouse is left with assets that would cause a significant "step down" in lifestyle, or if a minor child is left without resources for their upbringing and education, the court will likely vary the will. In these cases, the legal obligation to support the dependent often overrides the written wishes of the testator, as seen in cases like Adams v. Broughton, where a disinherited spouse was granted a portion of the estate to avoid destitution.
Disinheritance is also frequently challenged when it involves adult children with disabilities. Under the Wills and Succession Act , an adult child (over 18) is only eligible to claim maintenance and support if they are unable to earn a livelihood due to a physical or mental disability. In Campbell v. Ensminger, the court rerouted gifts intended for charities to an adult daughter who was unable to work, even though the father had been largely estranged from her and was unaware of the extent of her disability. The court's primary concern in these instances is ensuring that the responsibility for a disabled child’s care remains with the parent’s estate rather than shifting it to the provincial government, reflecting contemporary community standards of parental responsibility.
In contrast, adult independent children (those who are over 18, not in school, and not disabled) generally face the highest hurdle when trying to overturn a disinheritance in Alberta. While British Columbia courts often vary wills based on a "moral duty" to independent children, Alberta courts are much more reluctant to do so unless there is a clear statutory eligibility. However, if a parent provides specific "valid and rational" reasons for disinheriting an adult child within the will, the court may still examine whether those reasons are factually true. If the reasons are proven to be false or based on a logical error (such as an incorrect belief that a child had already received their inheritance through inter vivos gifts), the court may find the disinheritance invalid and redistribute the assets to achieve a "just and equitable" result.
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