What is a Will [Last Will & Testament]

A will is a written document directing the disposition of a person’s assets after their death, drafted in conformity with the laws of the jurisdiction that has legal authority over that person’s estate upon their death.

The will can also set out the personal representatives (trustees) who are empowered to carry out the procedures and processes set out in the will pertaining to the disposition of the assets, as well as other arrangements that an individual might establish prior to their death.

Arrangements that are often undertaken in a will related to post-death actions, can include:

• Management and distribution of assets and funds in the estate at a later date to beneficiaries, typically due to their age or their personal inability to manage funds;

• Determination of guardians for young children and guardianship arrangements;

• Investment requirements related to assets and funds in the estate that are not initially distributed;

• Directions related to the disposition of one’s body, such as burial, cremation and specifics as to any body-part donations.

Critical to establishment of a will is its conformity with the laws of the jurisdiction that has legal authority over the person’s estate upon their death, which in Alberta would be the Wills and Succession Act, and court precedent arising therefrom.

The Wills and Succession Act sets out the specific statutory requirements in the written document to constitute a legally recognized will and how it is to be interpreted by the personal representatives (trustees) and the Court.

The significance of the applicable statute cannot be overstated, as it dictates the legal criteria for a legal will, as is evident with the Wills and Succession Act:

Who can make a will

13(1) An individual who is 18 years of age or older may make, alter or revoke a will if the individual has the mental capacity to do so.

(2) An individual who is under 18 years of age may make, alter or revoke a will if the individual has the mental capacity to do so and if the individual

(a) has or has had a spouse or adult interdependent partner,

(b) is a member of (i) a regular force as defined in the National Defence Act (Canada), or (ii) another component of the Canadian Forces and is, at the time of making the will, placed on active service under the National Defence Act (Canada), or

(c) is authorized by an order of the Court [with the specifics thereof set out in section 36 of the Wills and Succession Act].

Requirements of a valid will

14 To be valid, a will

(a) must be made in writing,

(b) must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will, and

(c) subject to any order made under section 37 [Court validation of a non-compliant will], must be made in accordance with section 15 [a formal will], 16 [a holograph will] or 17 [a military will].

Formal will

15 A will may be made by a writing signed by the testator if

(a) the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and

(b) each of the witnesses signs the will in the presence of the testator.

Holograph will

16 A will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality.

Military wills

17 A member of the Canadian Forces while placed on active service pursuant to the National Defence Act (Canada), or a member of any other naval, land or air force while on active service, may make a will by signing it, without the presence or signature of a witness or any other formality.

Signature

19(1) A testator may sign a will, other than a will made under section 16, by having another individual sign on the testator’s behalf, at the testator’s direction and in the testator’s presence.

(2) A will is not invalid because the testator’s signature is not placed at the end of the will if it appears that the testator intended by the signature to give effect to the will.

(3) A testator is presumed not to have intended to give effect to any writing that appears below the testator’s signature.

(4) A testator’s signature does not give effect to any disposition or direction added to the will after the will is made.

Witnesses to signature

20(1) An individual may be a witness to a signature of the testator if the individual has the mental capacity to do so.

(2) An individual who signs a will on behalf of a testator is not eligible to witness the signature of the testator.

(3) An individual who witnesses a signature of a testator is not disqualified as a witness to prove the making of the will or its validity or invalidity only because the individual is

(a) an executor of the will,

(b) a beneficiary under the will, or

(c) the spouse or adult interdependent partner of an executor or a beneficiary.

(4) A will is not invalid only because

(a) a witness to the signature of the testator did not know at the time of witnessing the signature that the document being signed was a will,

(b) a witness to the signature of the testator was at the time of witnessing the signature, or afterwards became, incapable of proving the making of the will, or

(c) more than 2 individuals witnessed the signature of the testator.

Certain dispositions are void

21(1) Subject to subsection (2) and any order made under section 40, a beneficial disposition that is made by will to

(a) an individual who acts as a witness to the signature of the testator,

(b) an individual who signs the will on behalf of the testator under section 19(1),

(c) an interpreter who provided translation services in respect of the making of the will, or

(d) the spouse or adult interdependent partner of an individual described in clause (a), (b) or (c) is void as against the individual, the spouse or adult interdependent partner of the individual and any individual claiming under any of them.

(2) A disposition referred to in subsection (1) is not void

(a) if it is a charge or direction for payment of remuneration, including professional fees of a personal representative of the estate or of an interpreter referred to in subsection (1)(c),

(b) in the case of a disposition to a witness, if the will is made under section 16 or 17 or if the testator’s signature is witnessed by at least 2 other individuals under this Part, or

(c) if the Court validates the disposition by order under section 40.

(3) For the purposes of this section, the time for determining whether an individual is the spouse or adult interdependent partner of another individual is the time at which the will is made.

Further rules relating to the establishment and interpretation of wills are set out in the Wills and Succession Act, including those relating to the alteration, revocation and revival of wills, as well as the interpretation of wills, Court orders and conflicts of law.

Whether you are looking to have a will created or require legal representation in the implementation of a decedent’s will, contact our law firm for experienced legal representation in those matters at Chris@NeufeldLegal.com or 403-400-4092.