TESTATOR: The Maker of the Will
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The testator is the technical legal term for the individual who makes and executes their last will & testament. By way of example, if Janet has a lawyer draft her a last will & testament and she proceeds to execute the will, then Janet is referred to as the Testator. When Janet subsequently passes away, she is said to have died “testate”, or with a will.
The testator must meet the legal capacity requirements of the governing jurisdiction to create a legally binding and recognized will, which in the Province of Alberta is the Wills and Succession Act. The Alberta Wills and Succession Act sets out the legal capacity requirement for an individual to make a will at section 13.
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 under section 36.
There is also the legal requirement that the will be valid, with the statutory requirements also being set out in the governing jurisdiction’s legislation, such as the Alberta Wills and Succession Act at section 14.
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, must be made in accordance with section 15, 16 or 17.
The requirement set out in subsection 14(c) pertain to formal wills (section 15), holograph wills (section 16) and military wills (section 17), with the holograph will having been supplemented by having the will witnessed pursuant to sections 19 and 20, which is the preferred approach with most wills.
With that being said, in each province and in foreign jurisdictions, it is important to review the current legislation for that particular jurisdiction and consult with legal counsel admitted to practice in the jurisdiction and made aware of the pertinent facts and circumstances, to understand the legal particulars of a testator .
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.
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