The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss the requirements for making a valid will.
A will is a legal document that says how your property is to be distributed after your death. You should consult with a lawyer to ensure that your will is legal and it complies with all of the formalities under the Wills and Succession Act. There are strict legal requirements under the Wills and Succession Act for a will to be valid. If your will does not comply with the requirements of the Act, the Court may declare your will invalid when it is probated even though it was signed by you. Your property will then be distributed according to any previous will you made that was valid. If you die without a will this is known as being “intestate”, and the Wills and Succession Act will then be used to determine how your property is to be divided.
To make a will, you must be over 18 years of age and mentally competent. If you are under 18 years, you can make a will under some circumstances. For example, if you are under 18 and married, are under 18 and a member of the armed forces, or are under 18 and have the court’s approval.
A will must be properly witnessed to be valid. All signatures in the will must be witnessed by at least two (2) other people. Your signature as the testator (the one who makes the will) must be made in the presence of the two witnesses. This means that both of the witnesses must be present and watch you when you sign your will. Each witness must then make their signature in the presence of both you and the other witness. This means that all 3 signatures must be made at the same time. The witnesses do not need to know the contents of the will before they sign. Some people are not allowed to witness a will, such as someone you have named as a beneficiary in the will or the spouse of a beneficiary. Do not let a beneficiary in your will or the a spouse of a beneficiary witness your will. If they do act a a witness, any gift made to that beneficiary in the will may not be allowed. They may need to seek special permission from the court to inherit the gift. This can be very expensive to do.
The signatures of both you and your witnesses should be made at the end of the will. The Wills and Succession Act does not require you or your witnesses to sign on each and every page of the will however, if your will is written on more than 1 sheet of paper, the Court may require some indication that each of the pages that make up your will are part of the same will. It is therefore advisable for you and your witnesses to place your initials on the bottom of each page of the will.
You can make a valid will without certain formalities required under the Wills and Succession Act if you make the will entirely in your own handwriting. For example, you would not require any witnesses to your will if you wrote the entire will using a pen and paper and signed your name on the will. A will written entirely in your own handwriting is called a Holograph Will. Your holograph will is valid only if the entire document is in your own handwriting. Therefore, fill in the blank wills, will kits, will packages, or partially typed wills are not holograph wills. You do not need to use legal terms in your will as long as you clearly state that the document is intended to be your last will. You must sign and date a holograph will at the bottom.
You are strongly advised against using a will package purchased from a stationary store where you only fill in the blanks on preprinted forms. These forms may be used as a guide to prepare a will, but you should rewrite everything in your own handwriting to make it a valid holograph will. If you only fill in the blanks on the form, then the will must follow the strict formalities under the Wills and Succession Act.
Your will, or parts of it, may automatically be cancelled or revoked by the Wills and Succession Act when certain things occur. For example, if you make a will while married and then subsequently get divorced, any gift in your will left to your former spouse is automatically deemed to have been revoked. Similarly if you named your spouse as your executor, and then are divorced, that appointment of your spouse as your executor is also automatically revoked.
You should speak to a lawyer about whether or not your will remains valid anytime a major life event occurs, including if you are married or divorced after making the will, if you begin living in a long term relationship, or end a long term relationship, after making the will, or if your partner passes away or become unable to act for themselves after making the will.
A will is automatically revoked when:
- You make another will;
- You make a written statement declaring an intention to revoke the Will and it is made in accordance with the Wills and Succession Act;
- You intentionally destroy it with the intention of revoking the will;
- You have someone else intentionally destroy your will at your direction with the intention of revoking the will;
You should make a new will if there is a major change of circumstances in your life. If you wish to make only minor amendments to your will, you can make a “codicil” or an addition to a will. The codicil must be signed and witnessed in the same way that you originally signed the will.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.