When someone passes away, it can be upsetting to learn that assets you expected to form part of the estate are not included. Jointly titled properties, beneficiary-designated accounts, and transfers made before death may pass outside the estate administration process or probate, even if there’s a will that says something different.
Under Alberta law, many of these “non-probate” arrangements can be valid; however, they can sometimes be challenged where there are concerns about capacity, undue influence, fraud, or other improper conduct.
Edmonton Law Office helps families examine questionable asset transfers and pursue legal remedies when appropriate. If you suspect that assets were improperly moved or designated to exclude you from an inheritance, contact us at 780.784.6666 for a free initial consultation to discuss your situation.
Non-probate assets often pass directly to a surviving joint owner or a named beneficiary outside the estate probate/administration process. In many probate cases, the will does not control these assets. However, the result can sometimes be challenged depending on the asset and the facts (for example, issues of capacity, undue influence, fraud, or resulting trust).
These transfers occur automatically upon death through existing legal arrangements. Joint property ownership, beneficiary designations on financial accounts, and payable-on-death arrangements all fall into this category. While these mechanisms can provide legitimate estate planning benefits, they also create opportunities for abuse.
Common types of non-probate transfers include:
Under the Wills and Succession Act and other Alberta legislation, these arrangements generally take precedence over will provisions, making them powerful tools for either legitimate planning or wrongful asset diversion.
Joint property held with a right of survivorship will generally pass to the surviving joint owner on death, and the asset may not form part of the estate. This can significantly reduce what is available for distribution under the will or intestate distribution, potentially affecting the inheritance of other beneficiaries.
When property is held in joint tenancy, the surviving owner generally becomes the sole owner on death by right of survivorship. This can have the practical effect of bypassing the will, even if the deceased’s estate plan said otherwise or bypassing intestate distribution. Whether the transfer reflects a true gift, or whether the surviving joint owner was added only for convenience (or through undue influence), is a fact-specific question.
Where a person is added to title gratuitously (i.e., for no payment), especially a non-spouse such as an adult child, the Supreme Court of Canada in Pecore v. Pecore confirmed courts may start from a presumption of resulting trust, meaning the surviving joint owner may have to prove the deceased intended a true gift of the right of survivorship (and not “convenience” only). Relatedly, in Kerr v. Baranow, the Court affirmed that for non-spouses, claims may also arise in appropriate cases through unjust enrichment (with remedies that can include a monetary award or constructive trust, depending on the facts).
Problematic joint ownership situations often involve:
The timing and circumstances surrounding joint ownership arrangements can provide grounds for legal challenge. Courts will examine whether the deceased truly intended to make a gift or merely sought assistance with property management.
Beneficiary designations on insurance policies, retirement accounts, and other financial products can be challenged when made without proper capacity or under undue influence.
Financial institutions typically honour the most recent beneficiary designation on file, regardless of what a will states. This creates vulnerability when someone with access to account information pressures an elderly or incapacitated person to change beneficiaries.
Red flags for improper beneficiary changes include:
The Insurance Act and other provincial legislation provide frameworks for challenging these designations, but time limits apply. Documentation of the deceased’s mental state and the circumstances surrounding designation changes becomes crucial evidence.
Large gifts, property transfers, or account withdrawals made shortly before death may indicate financial exploitation or represent fraudulent conveyances designed to reduce the estate.
Alberta courts recognize that unusual financial activity near the end of life can signal elder abuse or deliberate estate manipulation. Transfers made when someone lacks capacity or under duress may be voidable, allowing assets to be returned to the estate.
Note: Timing categories below are general discussion-only risk indicators, not a fixed legal test; outcomes depend on evidence.
| Transfer Timing | Practical risk (not a legal test) |
Common Issues |
| Within 30 days of death | Often higher | Deathbed gifts, coercion concerns |
| During the final illness | Often higher | Capacity questions, undue influence |
| 1-2 years before death | Varies | Pattern of exploitation, isolation |
| More than 2 years prior | Varies | Legitimate planning vs. fraud analysis |
Warning signs include transfers to caregivers, isolation from family members, and financial activity that contradicts the person’s historical patterns or stated intentions.
Alberta law provides several grounds for challenging non-probate transfers, including lack of capacity, undue influence, fraud, and constructive trust claims.
Successful challenges typically require proving that the transfer was not the result of the deceased’s free and informed decision. The burden of proof varies depending on the relationship between the deceased and the recipient of the assets.
Key legal grounds include:
The Adult Guardianship and Trusteeship Act and common law principles govern these claims. Courts examine all circumstances, including the deceased’s vulnerability, the recipient’s conduct, and the fairness of the transfer.
When non-probate transfers reduce your expected inheritance, you have several legal remedies available, but time limits and procedural requirements make prompt action essential.
Recovery options depend on the type of transfer and the grounds for challenge. Some claims must be brought within specific limitation periods, while others may have longer time frames for action.
Available remedies include:
Early investigation is crucial because evidence may disappear and witnesses’ memories fade. Financial records, medical documentation, and witness statements all play important roles in building a successful case.
Professional legal guidance becomes essential when you suspect improper asset transfers, as these cases involve complex law and strict time limits that can bar claims if not met.
These disputes often involve substantial assets and family relationships, making professional legal services crucial for protecting your interests while navigating emotional dynamics. Edmonton Law Office provides comprehensive assistance with investigating suspicious transfers and pursuing appropriate remedies under Alberta law.
Contact us immediately if you discover:
Because deadlines can be short (i.e as short as two years) and evidence can disappear, it’s important to get legal advice promptly. Depending on the type of claim, strict time limits and limitation periods may apply, sometimes much sooner than people expect. Call Edmonton Law Office at 780.784.6666 to schedule your free initial consultation. Our lawyers will review your situation, explain your rights, and help you determine the best path forward to protect your inheritance interests. Don’t let suspicious transfers go unchallenged—contact us today to discuss your legal options.
Contact us today to schedule a free initial consultation to discuss your legal issue. Get the answers you need today.
