What is Formal Proof of Will?

Formal proof of will is one way of proving the validity of a will. The process of formal proof of will may be used where the validity of a will is contentious.

In this situation, rule 78 of the Alberta Surrogate Rules lists “persons interested in the estate” who may apply for a formal proof of will. These persons include:

(a) surviving spouse or surviving adult interdependent
partner;
(b) adult children;
(c) Public Trustee or any other person representing minors;
(d) trustees of represented adults under the Adult
Guardianship and Trusteeship Act;
(e) attorneys appointed under the Powers of Attorney Act;
(f) Public Trustee when representing missing persons;
(g) heirs on intestacy;
(h) personal representatives and beneficiaries in any will in
respect of which an application is made under these Rules;
(i) personal representatives appointed under a prior grant
issued in respect of the will;
(j) the alleged deceased if the fact of death is an issue.

Pursuant to rule 81, the Court may in an order require formal proof of will. When this order is made, either a personal representative or an applicant will be required to file the necessary documents.

Pursuant to rule 86, the Court must on an application for formal proof of will:

(a) if several wills of the deceased are in issue, consider each
will in turn in the order in which they were made, beginning with the most recent;
(b) as soon as the court admits to probate one or more wills
that dispose of all of the property of the deceased, consider no further wills;
(c) if the wills admitted to probate do not dispose of all of the
property of the deceased, consider whether an intestacy exists;
(d) if a will is opposed and an application for a declaration of intestacy is made, decide whether the will should be
admitted to probate.

If you have questions regarding formal proof of will, or believe a will to be invalid, contact one of the estate litigation lawyers at Kantor LLP. We are happy to answer questions.