Avoiding a Will Because It Feels Stressful? Here’s What You Need to Know
In Alberta, having a properly drafted Will can provide peace of mind and make a difficult time easier for your family and loved ones, while ensuring that your final wishes are carried out.
A Will is a legal document that:
Names the Personal Representative(s) who will manage your Estate after your death;
Directs how your property and assets will be distributed; and
Allows you to name a guardian for any minor children.
Having a Will ensures that your bills are paid, your assets are preserved, and your property goes to the people you choose.
If a person dies without a valid Will (known as dying “intestate”), the Wills and Succession Act (Alberta) determines who may apply to administer the Estate and how the property will be distributed. In these situations, the distribution may not reflect your wishes, which is why creating a Will is an important step in protecting your family and your legacy.
There are many ways to create a Will, and no two Wills are exactly alike. Notwithstanding the uniqueness of every Will, all Wills share some common characteristics, namely:
- All Wills must be created and executed according to certain formal requirements to be considered valid;
- If a Will is not valid, the Testator’s wishes expressed in it will not be followed;
- A person making a Will is referred to as the Testator; and
- When the Testator signs their Will, the Testator is said to have executed it.
Free Consultation
If you need to make a Will or want to make changes to your existing Will, please contact our office for a free consultation at: (403)-288-0009 or murray@bodnaruklaw.com
Formal Requirements of Wills
In writing
The first requirement for a valid Will is that it be in writing. An audio or video recorded “Will” is not valid.
Signed by the Testator
To be valid, a Will must be signed by the Testator. The Testator should sign the Will with his/her usual signature. If a Testator normally signs with his/her middle name instead of his/her first name, or with his/her first initial instead of his/her first name, that is the most appropriate way for the Testator to sign his/her Will. The Testator’s signature must be at the foot or the end of the Will. If the signature appears in the middle of the Will, the portion of the Will after the signature is not valid and not considered part of the will.
Witnessed
A Will must be witnessed by two witnesses, neither of whom should be a beneficiary named in the Will, nor the spouse of any beneficiary. Both witnesses must be present when the Testator signs, and they must sign the Will in the presence of the testator and in the presence of each other.
Intention to Dispose
The most important requirement of a valid Will is that it has a disposing intention (testamentary intent), meaning that it is clear the Testator intends to give away his/her property according to what is written in his/her Will. When a Will is contested, the Court will do its best to ensure the Testator’s testamentary intent is followed.
Legal Requirements of Wills
Age of the Testator
To make a valid Will, a Testator must be at least 18 years of age. A testator who is a member of the Canada Forces, is a sailor and at sea, or is married, or was previously married, may make a valid Will even though he/she is under 18 years of age. If an underage person is contemplating marriage, he/she may make a valid Will provided that the Will states it is being made in contemplation of marriage to a named person. In such a case, the Will becomes valid only upon the testator’s marriage to that named person.
Testamentary Capacity and Knowledge and Approval of Contents of the Will
A Testator must have testamentary capacity and must know and approve the contents of their Will. Otherwise, the Will can be set aside by a court after the Testator’s death.
Testamentary capacity is related to the fitness of the Testator’s mind. A person lacks testamentary capacity if they lack any one of the following four elements at the time of giving instructions for their Will and/or at the time of signing their Will:
- an understanding of what it means to make a Will;
- an understanding of the extent of the Testator’s own property;
- an understanding of the relationships that the Testator has with those persons who might be expected to receive a portion of his/her estate; and
- an understanding of the claims of the persons whom the Testator is leaving out of his/her Will.
Appointment of a Personal Representative
A Personal Representative (formerly known as an Executor) is the person who is chosen by the Testator to carry out the Testator’s intentions as outlined in his or her Will. This includes gathering and securing all Estate assets, obtaining a Grant of Probate, settling liabilities (such as debts or taxes owing), ensuring the completion of income tax returns for the deceased and for their Estate, and distributing the residue of the Estate according to the terms of the Will.
A Personal Representative must be at least 18 years of age and must not be an undischarged bankrupt. For practical reasons, Personal Representatives should be individuals who are knowledgeable and responsible in dealing with money and other valuable property.
A Testator can appoint their spouse, a family member, a trusted friend, or even a financial institution to act as their Personal Representative. It is important that an alternate Personal Representative be named in the Will in the event the first choice for Personal Representative is unable or unwilling to perform the duties of a Personal Representative.