The Importance of a Will

Lisa, I’ve been practicing with you for years, and I’ve heard you say many times that every Albertan needs a Will. Is it that important?

Yes, even when an Albertan has a very straightforward estate and family life, it is very important to have a legally-valid Will. Where the deceased does not have a legally-valid Will, Alberta law determines how the deceased’s estate is distributed. In many cases, such distribution would not reflect the deceased’s wishes. Alberta law also determines who is the Personal Representative (Administrator) of the deceased’s estate: the person who takes control of the estate. The only way for an Albertan to ensure their wishes are honored is to prepare a legally-valid Will.

Many clients believe that if the deceased has a spouse or common-law partner they will inherit everything. Is that true?

Not necessarily. In Alberta, if someone dies without a legally-valid Will, the spouse or common-law partner might not inherit the entire estate. This is particularly true in cases where the deceased has a child from a previous relationship, the couple lived together for less than three years, or they were in a long-term relationship but never lived together or got married.

Okay, you have me convinced that a Will is important – but must you hire a lawyer to prepare a Will?

A Will does not have to be prepared, or witnessed, by a lawyer to be legally-binding. However, a Will must comply with strict signing requirements to be recognized as legally-valid. If a Will is not legally-valid, the Albertan will die ‘intestate’, which means that Alberta law will determine how the deceased’s estate is distributed. This of course is not ideal, and often leads to contention and dispute among loved ones. If an Albertan engages an estate lawyer, the lawyer will guide them in making their decisions, including discussing risks, tax planning opportunities, considerations in appointing the Executor, and properly providing for children and other family members.

I’m certain many of our clients in the Bow Valley have Wills, although perhaps created many years ago. Is there anything you would recommend?

A critical first step is to ensure that they can locate their originally-signed Will (the Will that they actually physically signed in ink). If they cannot locate the originally-signed Will, they do not have a legally-valid Will and should ensure a Will is prepared at their earliest opportunity. Only the originally-signed Will can be admitted to probate: a photocopy, scanned copy or ‘trued-up’ copy cannot be used. Therefore, knowing the location of the original document is of critical importance. This is also an important consideration when attempting to assist elderly parents with their estate planning: it is not enough to have a copy of your parent’s Will, you must be certain of the location of the originally-signed Will.

If they can locate the originally-signed Will, but it requires changes, can they make simple changes themselves?

We typically do not recommend it. To be legally-binding, even revisions to a Will must comply with very strict signing formalities. For example, handwritten changes on an originally-executed formal Will are likely not legally-binding, and therefore will almost-certainly cause conflict: which leads to expense, delay and tension among loved ones.