In Alberta as is the case with several legal systems all over the world the most important estate planning document for any individual is a Will. By definition a Will is a legal document that outlines an individual’s instructions with respect to the distribution of their property, names a Personal Representative who will represent their estate after their death and names a guardian for any minor children.
There are several types of wills which include:
- Formal Wills which follow all of the legal requirements of a valid will.
- Military Wills made by members of the Canadian Armed forces in active service.
- Holograph Wills which are handwritten by the will maker referred to as a testator.
The formal requirements of a valid will as provided in the Alberta Wills and Succession Act are:
- That it must be in writing; and
- It must be signed in the presence of two witnesses who must themselves sign the document.
In Alberta, wills are typically required to be signed in the physical presence of the witnesses but as a result of the Covid-19 pandemic, the Government of Alberta in May 2020 issued a temporary Ministerial Order allowing for Wills, Powers of Attorney and Personal Directives to be witnessed remotely. While this is a welcome development it is my opinion that the temporary approval is problematic on a number of fronts and that it is safer for testators to stick to the standard requirements and instead utilize physical distancing and other safety measures while ensuring that their estate planning documents are executed in the physical presence of the witnesses.
In order to make a will in Alberta, an individual must have mental capacity and must be:
- 18 years of age or older; or
- A member of the Canadian Armed Forces; or
- Authorized by the Court.
There is no legal requirement for an individual to have their will prepared by a Legal Practitioner and Individuals are free to prepare their own holograph wills or purchase will kits online but considering the stakes it might be worth it to retain a lawyer to prepare a formal will and ensure that the end product is legally enforceable and properly represents the wishes of the testator. It is worth it to note that Legal Practitioners have the required expertise to prepare Estate planning documents that incorporate Trusts which are wonderful vehicles for Estate tax planning, preventing beneficiaries from squandering their inheritance and ensuring that beneficiaries on disability do not lose their provincial entitlements as a result of their inheritance.
For testators who are old and frail there is always the risk that their will could be challenged on the basis that their mental capacity is in doubt and for those who have blended families, have recently been divorced or separated or who are considering getting married, an Estate Lawyer would be a much preferable option so that all of the potential issues can be fully explored.