Making a Valid Will in Alberta Under the Wills and Succession Act

A will is the document that tells the world who receives your property, who administers your estate, and who cares for your minor children. In Alberta, wills are governed principally by the Wills and Succession Act, which sets out the formal requirements for validity and the rules that apply when someone dies without a valid will. The requirements are not complicated, but they are strict enough that homemade documents frequently fail, and the cost of fixing a defective will after death is far higher than doing it properly.

Estate planning also involves more than a will. A will only takes effect on death and only controls property that forms part of your estate. Decisions about your finances and health care while you are alive but unable to decide for yourself require different documents entirely. This article covers what makes an Alberta will valid, the mistakes that create litigation, what happens if you die intestate, and the companion documents that complete a plan for an Edmonton family.

What Alberta Law Requires for a Valid Will

A standard formal will in Alberta must be in writing and signed by the person making it, generally at the end of the document. Two witnesses must be present at the same time when the will maker signs or acknowledges the signature, and each witness must then sign in the will maker's presence. The will maker must be at least eighteen, subject to limited exceptions, and must have the mental capacity to understand the nature of the document, the extent of their property, and who might reasonably expect to benefit.

• The will must be in writing. Alberta does not currently recognise electronic or video wills.
• Neither witness, nor a witness's spouse or adult interdependent partner, should be a beneficiary.
• A gift to a witness is generally void even though the rest of the will remains valid.
• The will maker must be acting freely, without undue influence from anyone who benefits.
• A handwritten holograph will, written entirely in the will maker's own hand and signed, is valid in Alberta without witnesses.

The Decisions Your Will Should Actually Make

A will names a personal representative, formerly called an executor, who gathers the assets, pays the debts and taxes, and distributes what remains. It also names beneficiaries and sets out alternates in case someone dies first. Parents of young children should name a guardian, and consider a trust so that a nineteen year old does not inherit a large sum outright. Thinking through what happens if a beneficiary predeceases you, or if a child has creditor or relationship problems, avoids most of the disputes that reach court.

Assets that pass outside your will

Not everything you own is controlled by your will, and this catches many people out. Registered plans such as RRSPs, RRIFs, and TFSAs with a named beneficiary pass directly to that person. Life insurance with a named beneficiary does the same. Property held in joint tenancy with right of survivorship generally passes to the surviving joint owner. If your will divides everything equally among three children but your largest account names only one of them, the result is likely not what you intended.

What Happens If You Die Without a Will in Alberta

Dying intestate does not mean the government takes your estate, which is a persistent myth. It means the Wills and Succession Act decides who inherits, using a fixed formula that may not match your wishes. Where there is a surviving spouse or adult interdependent partner and all of the children are also theirs, the survivor generally takes the entire estate. Where there are children from another relationship, the estate is split according to a prescribed formula. Someone must also apply to the court to be appointed administrator.

• Blended families are the situations most often left with an unintended outcome.
• A common law partner who does not qualify as an adult interdependent partner may receive nothing.
• Minor children's shares may need to be held or paid into court, which is administratively cumbersome.
• Someone you would not have chosen may end up administering your estate.

Dependant Claims and the Documents That Go With a Will

Alberta law allows certain dependants, including a spouse or adult interdependent partner, minor children, and some adult children who cannot support themselves, to apply for support from an estate where adequate provision was not made for them. These applications have a short deadline that runs from the grant of probate. Careful drafting, and in some cases documented reasons for the distribution chosen, can reduce the risk of a successful claim, though nothing eliminates the possibility that someone will challenge a will.

A complete Alberta estate plan usually includes three documents. The will deals with your property after death. An enduring power of attorney lets a person you trust manage your finances if you lose capacity while alive. A personal directive appoints someone to make health care and personal decisions in the same circumstances. Without the last two, your family may need to apply to court for guardianship or trusteeship, which is slow, public, and expensive at exactly the wrong moment.