Alberta Court of Appeal rules in favour of surviving spouse, who seems entitled to whole estate
The Alberta Court of Appeal agreed with a surviving spouse that the province’s Family Property Act, 2000 (FPA), did not require the settlement of family property matters brought before one party’s death prior to the pursuit of a related estate action.
Lalonde v Waddell, 2026 ABCA 296, involved the estate of the appellant’s former husband. They were married and had a son. The appellant also had another son. The couple separated on July 13, 2022.
Family property action
On Nov. 29, 2022, the appellant initiated an action for divorce and division of family property. The deceased transferred certain property he owned to the two sons. On Nov. 18, 2023, the deceased passed away without a will.
On Dec. 19, 2023, the court granted the appellant administration of the estate.
Estate action
In an action filed on the estate’s behalf, the appellant sought to recover the property transferred to the two sons.
At a pretrial conference for the estate action, the judge broached the topic of the family property action. The estate’s counsel said she needed to talk to her client before knowing how they wanted to proceed. The pretrial judge then adjourned the conference.
Procedural orders
Later, the pretrial judge issued two related procedural orders.
For the family property action, the procedural order essentially served as a court-ordered litigation plan and dealt with disclosure timelines. This procedural order required a final decision on the family property action before addressing the estate action.
In connection with the estate action, the procedural order adjourned sine die the scheduled trial to make way for the resolution of the family property action.
Appeal by surviving spouse
Upon receiving permission to appeal, the appellant challenged the procedural order for the family property action.
First, the appellant argued that the pretrial judge committed a legal error by determining that the family property action had to conclude before the estate action could proceed. The appellant asserted that:
- Alberta’s Wills and Succession Act, 2010 (WSA), clearly determined her survivorship interest in the estate
- The FPA did not require the settlement of family property matters commenced prior to one party’s death before the pursuit of a related estate action
Second, the appellant alleged procedural unfairness in addressing the family property action without notice to the parties during the estate action’s pretrial conference.
Alberta Court of Appeal grants appeal
The Court of Appeal of Alberta wholly set aside the family property action procedural order. Regarding the first ground of appeal, the appeal court saw errors in the pretrial judge’s interpretation of the statute and in her findings that:
- A surviving but separated spouse could not rely on s. 61(1) of the WSA to claim the deceased spouse’s entire estate
- The FPA required a surviving spouse to pursue and complete a pending family property action before dealing with their property claim on behalf of or against the deceased spouse’s estate
The appeal court ruled that the circumstances for not treating a surviving spouse as a spouse for the purpose of intestate succession under s. 63(1)(a) of the WSA did not apply here.
The appeal court then held that the appellant appeared entitled to the entire estate, including all the property subject to the family property action.
Based on the evidence, the appeal court noted that:
- The parties were separated for less than two years at the time of the death
- No agreement addressed their family property
- The deceased’s descendant was also the appellant’s descendant
- The deceased did not bring the present action
- The deceased did not file a defence or counterclaim against the present action before his death
Procedural unfairness claim
Given its findings about the pretrial judge’s errors, the Alberta Court of Appeal deemed it unnecessary to tackle the allegation of procedural unfairness.
The appeal court noted that this case was distinguishable from Doroshenko v Villanueva, 2026 ABCA 7, which the appellant had cited.
Lastly, the appeal court acknowledged that proceeding first with the estate action would likely lead to a finding that the appellant was entitled to the entire estate. At that point, the family property action would no longer continue, and the appellant would not need to pursue FPA remedies.
Previous estate cases in Alberta
Here are some other recent estate law decisions by the province’s courts.
On July 3, the Alberta Court of Appeal dismissed an appeal brought by the estate’s current personal representative, who wanted the prior personal representatives to disclose certain estate-related documents that a chambers judge had considered privileged.
On Apr. 21, the Alberta Court of King’s Bench confirmed that a grant of administration was a court order indicating that the administrators had full legal authority over the deceased’s digital assets, meaning that Apple Canada Inc could not demand a further specific order.
On Apr. 16, the Alberta Court of King’s Bench dismissed an application by the nephew of the deceased seeking to question the lawyer who had prepared his aunt’s will before the estate could proceed with its application for security for costs.
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