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ALBERTA REQUIREMENTS for a WILL
Ensure your last will & testament is valid, such that it might withstand legal scrutiny and implement the stated actions upon your death.
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
The principal requirements for a valid Will in the province of Alberta, requires that you (the testator) ensure that the legal documentation meets the statutory prerequisites (pursuant to the Wills & Succession Act (Alberta)):
A. Testamentary Capacity
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Age: The person making the will (the testator) must be at least 18 years old. Exceptions can be made for minors under special circumstances, such as being married, in the military, or with a court order.
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Mental Competence: The testator must be of sound mind. This means they must understand:
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The nature and consequences of making a will.
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The extent of their property.
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The identity of their family members and those who might have a claim on their estate.
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That they are making a final and complete disposition of their property.
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B. Form and Execution
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In Writing: The will must be a written document.
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Signed by the Testator: The testator must sign the will themselves, or another person can sign on their behalf, in their presence, and under their direction. The signature must be placed in a way that makes it clear the testator intended to give effect to the document as their will.
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Witnesses: This is a crucial requirement for a formal will. The will must be signed in the presence of two witnesses, and the witnesses must also sign the will in the presence of the testator and each other. The witnesses do not need to know the contents of the will.
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Who can be a witness? Witnesses must be at least 18 years of age. A person who is a beneficiary in the will, or the spouse of a beneficiary, should not act as a witness. While the will may still be considered valid, any gift to that witness or their spouse will likely be void, unless there are other valid witnesses.
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Holographic Wills (Exception): A holographic will is an exception to the witness requirement. To be a valid holographic will, the entire document must be handwritten and signed by the testator. No witnesses are required. However, these types of wills are more prone to legal challenges.
C. Content of the Will
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Clarity of Intent: The will must clearly state the testator's intentions for the distribution of their assets.
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Appointment of an Executor: It is recommended to name a personal representative (executor) who will be responsible for administering the estate, paying debts, and distributing the assets according to the will's instructions. An alternate executor should also be named in case the primary one is unable or unwilling to act.
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Beneficiaries: The will must clearly identify the beneficiaries and what they are to receive.
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Guardianship: If the testator has minor children, the will should name a guardian to care for them.
D. Further Considerations of Substantial Consequence
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Self-Proving Affidavit: To streamline the probate process, a will can include a "self-proving affidavit" signed by the witnesses. This affidavit swears that they properly observed the signing of the will, which can save time and effort later on.
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Revocation: A will can be revoked by a new will, by a document declaring an intention to revoke it, or by the physical destruction of the will. In Alberta, unlike in some other jurisdictions, a marriage or entering into an adult interdependent relationship does not automatically revoke a will.
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Subject to Challenge: A will can be challenged on several grounds, including lack of capacity, undue influence, forgery, or improper execution. Completing your will without the engagement of a lawyer increasing the likelihood of the will being challenged, as it is very often perceived as lacking the requisite impartiality and independence, which you cannot prove following your own death.
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Legal Advice: While it is possible to create a will on your own, it is highly recommended to seek legal advice from a lawyer experienced in wills and estate planning. This ensures that the document is legally sound, protects your interests, and accurately reflects your wishes. Even a small error can lead to a will being challenged or invalidated, which can result in significant legal costs and family disputes.
Our law firm can help you plan for the future, including the preparation of a well-drafted will and other estate planning documents, as well as dealing with the legal demands associated with the passing of a loved one. We welcome you to contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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