Wills, Personal Directives And Power Of Attorney

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Contents

Important Terms
What Is A Will?
Formal Wills
Holograph Wills
Soldier’s Or Mariner’s Wills
Mutual And Joint Wills
Application For Adequate Provisions
The Matrimonial Home
Altering A Will
Revoking A Will
General Issues
Dying Without A Will
Personal Directives (Living Wills)
Power Of Attorney
Referral Numbers

Changes In Legislation

The Alberta legislature has made recent significant changes to the laws governing wills and estates. The new Wills and Succession Act, effective February 1, 2012, combines the old laws dealing with wills, support for surviving dependents and the distribution of intestate estates into one act. Specific sections of the new Act only apply if the testator died after February 1, 2012. The significant changes have been highlighted throughout this booklet. If you wrote a will before February 1, 2012, it is recommended that you review it to see if the changes affect you.

Important Terms

Testator: The person who has prepared a will and whose estate is to be distributed according to it.

 

Testatrix: A female testator. This term is not used often.

 

Estate: All the property owned by a person, whether inside or outside of Alberta, at the time of that person’s death.

 

Net Value: The value of the testator’s estate after payment of the charges, debts, funeral expenses, administration expenses, estate tax and succession duty, if any.

 

Beneficiary: An individual who receives or is going to receive some property from a will or intestacy.

 

Executor: A person named by the testator to gather the assets (property) of the estate, pay all outstanding debts of the estate, and ensure that the estate is distributed in accordance with the terms of the will.

 

Administrator: Fulfills the role of an executor but is appointed by the Court when an executor is not named by the testator in his/her will, or:

a. The named executor cannot serve his/her duties as an executor, or

b. No will exists.

 

 Intestate: A person who dies without allocating his or her property in a will. When someone dies completely intestate he/she has not allocated of any of his/her property through a will. Incomplete intestacy is when someone dies having allocated of only a portion of his/her property through a will. A person who dies intestate in Alberta after February 1, 2012 will have his or her property distributed in accordance with Part III of the Wills and Succession Act. For persons who died intestate prior to February 1, 2012, please refer to the Instestate Succession Act. See the section on Dying Without a Will for more information.

 

 Adult Interdependent Partners (AIP):

 The Alberta government has altered the definition of what has previously been called a “common law” relationship. The new term that is used in Alberta is Adult Interdependent Partner. There are three ways in which you can become an Adult Interdependent Partner with another person, regardless of gender:

1. Live with that person in a “relationship of interdependence” for at least three years continuously; 

 - A “relationship of interdependence” is when two people: 

a. Share in one another’s lives; 

b. Are emotionally committed to one another; and 

c. Function as an economic and domestic unit.

2. Live with that person in a “relationship of interdependence” that is of somewhat permanent and where there is a child by birth or adoption; or 

3. Make an adult interdependent partner agreement with the other person. 

 

 Family Members (Previously referred to as Dependants in the Dependants Relief Act).

 Dependants include:

a. A child of the testator under the age of 18; 

b. A child 18 years of age or older who is unable to earn a living because of mental or physical disability;

c. A child between the ages of 18-22 who is a full time student;

d. A grandchild or great-grandchild where the testator acted in the role of parent;

f. A spouse; or 

g. An Adult Interdependent Partner.  

 

 Minor: In Alberta, a minor is anyone under 18 years of age.

 

 Simultaneous Death: Two or more deaths that occur at the same time, or when it is uncertain which person died first. When making a will it is important to think about what will happen if the testator dies at the same time as his/her beneficiary, because the beneficiary must survive longer than the testator to receive the gift. In the event that simultaneous death occurs without the will saying what will happen in that event, courts will distribute the property as if each person died before the other. 

 

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What Is A Will?

 A will is one or more written legal document(s) that establishes how a testator’s property will be divided when the testator dies. All wills must be in writing and must follow the formal requirements specified in the Wills and Succession Act to be valid.

  

 A will is important because it can ensure that your property will go to those you want to receive it after your death. Any property that is not dealt with in your will shall be distributed in accordance with Part III of the Wills and Succession Act (See the section Dying Without a Will for more information).

 

 There are a few situations that can override a person’s will. For example, a Court can alter a will to provide for the proper care and support of dependants (See the section Applications for Adequate Provisions for more information).  Also, creditors (people that a testator owes money to) are paid off before any beneficiary receives a gift from a will. Therefore, gifts in a will can be decreased if the estate has substantial debt (owes a lot of money).

 

 There are three (3) types of wills:

1. Formal Wills;

2. Holographic Wills; and 

3. Soldiers’ or Mariners’ Wills.

 

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Formal Wills

 To be sure that formal wills have all the requirements of the Wills and Succession Act, they are generally written with the help of lawyers. The formalities required in a formal will are:

1. The will must be in writing 

2. The will must be signed. Either by the testator, or someone on behalf of and in the presence of the testator must sign the will;

a. The testator’s signature must be placed where it is clear that the signature applies to all of the writing in the will. The signature is usually at or near the end of the document.  

b. A signature will not give effect to provisions made underneath the signature or that were added to the document after it was signed.

3. A formal will must have two witnesses to be valid.  Witnesses can either:

a. Be present and watch the testator sign his/her will; or

b. The testator can sign his/her will alone, and then later acknowledge to his/her witnesses that he/she has signed the will. However, the witnesses must both be present when the acknowledgement is made. 

c. The witnesses must sign the will in the presence of the testator, but the other witness does not need to be present when one witness is signing.

 

 These formalities are a safeguard against fraud, forgery, and pressure. The formalities establish that the testator meant to make a will, and highlight the seriousness and importance of making a will. A formal will that does not have these formalities will be invalid. 

 

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Holograph Wills

 A holograph will is made entirely in the handwriting of the testator and is signed by him/her. There can be NO typing in a holograph will, if you want a will typed you should create a formal will. No witnesses are required. Because they are informal, holograph wills are often incomplete. 

 To be valid a holograph will must show:

a. A testamentary intention.

This means that the will must show that the gifts only take effect when the testator dies;  

b. A clear intention to make the gift. 

So, it is best to use clear phrasing like: “I bequeath when I die…”

 

 There are some common problems associated with holograph wills: 

a. They often fail to distribute the entire estate because it is difficult to think of all possible situations

b. They can be difficult for the Courts to interpret, because often the testator does not have enough legal knowledge to make his/her intentions clear enough for a Court to understand the will the way that the testator had hoped.  

c. Holograph wills are valid in Alberta, but they are not valid in all provinces.

 

 Holograph wills are often appropriate in emergencies when people do not have time to create a formal will. 

 

 

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Soldiers’ or Mariners’ Wills

 Mariners (sailors) or members of the Canadian Armed Forces may make a will using a written document signed by him/her or by someone on his/her behalf. The formal requirements are:

1. Either the testator, or an agent of the testator, must sign the will.

a. If a person signs on the testator’s behalf the person must be in the presence of the testator and do so at the direction of the testator.

2. The testator must be on active duty (employed full time by the military) at the time the will is created.  

a. For proof of active duty, Courts may obtain a certificate signed by the officer who has the records of the person at the time that the will was made. The document must state that the person was in active service at the time that the will was made.

b. A testator can be deemed to be on active service if he or she took steps to get ready for active service because of orders leading towards active service

 

 No witnesses are required to create this type of will.  

 

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Mutual and Joint Wills

 Mutual wills

Require two or more people to agree to make two identical wills.  

Each person creates a will that is exactly the same as the will of the other person or people. Each person leaves everything in his or her estate to the surviving member. There must be a clear intention to make mutual wills; a strong similarity between wills isn’t enough. 

All parties involved must intend, to create a mutual will. They must agree to make wills that dispose of their property in the same way, and agree not to revoke the mutual wills.

o The promise not to revoke may be viewed by the Courts as not being absolutely binding. If reasonable notice is given to the other party that one person wants to change or revoke the mutual will, the Courts will generally accept that revocation.

 

 Joint wills

The major difference between joint and mutual will is that in a joint will each party signs the same will (one document). With a mutual will there are two identical documents. 

By signing the document both parties demonstrate their intention to be bound by the will and their intention not to revoke the will. 

To revoke a joint will you need to give reasonable notice to the other person. 

 

 The major problem with both mutual and joint wills is that it is very difficult to make sure all parties involved are able to have their wishes put into the will. It is usually easier to draft your own separate will to ensure that your interests are represented.

 

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Application for Adequate Provisions

 If a testator has not made adequate provisions for proper care and support for his/her dependants (for example: the testator failed to leave anything to their minor children), the dependants can make an application under the Wills and Succession Act s. 88.

 

Proper maintenance and support is determined by considering all of the circumstances of a particular applicant, including:

a. The nature and length of the applicant’s relationship with the deceased

b. The applicant’s age and state of health

c. The applicant's ability to support themselves

d. The estate’s legal obligation to support any other family member

e. The deceased's reasons for making or not making dispositions of property to the applicant, and any relevant agreement or waiver made between the deceased and the applicant (including any written reasons)

f. The size and nature of the estate

g. The nature and number of gifts made to entitled beneficiaries from the deceased’s estate 

h. Any trust properties that the deceased intended for the applicant or other beneficiaries 

i. Any property or benefit that the applicant is entitled to receive under other legislation (Matrimonial Property Act, the Dower Act, other sections of the Wills and Succession Act)

 

 

Who can apply for maintenance and support

a. Spouses, partners, children under 18, children over 18 who are physically or mentally disabled

b. Adult children under 22 who are full-time students, minor grandchildren or great-grandchildren who were dependent on the deceased for support

c. A representative applying on behalf of a dependent (for example, a legal guardian applying on behalf of a minor).

 

The criteria listed above only apply in situations where the testator died after February 1, 2012. Please consult the Dependents Reliefs Act for the factors used in testator deaths before February 2012.

 

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The Matrimonial Home and the Dower Act

Under the Dower Act, a spouse is entitled to certain parts of the testator’s estate, regardless of what is stated in the will.  The matrimonial home is any home in which either spouse has lived since the marriage.  In some cases, the home is entirely owned by one of the spouses.  If the matrimonial home is entirely in the testator’s name, the spouse is entitled to a life estate in that home for his/her life.  This means that once the surviving spouse passes away, the estate will go back to the beneficiary that the testator originally named in the will. This is called a ‘life estate’. The surviving spouse must choose only one home if the testator owned more than one.

 

The life estate that the spouse inherits under the Dower Act creates certain rights and obligations for the surviving spouse.  The surviving spouse is entitled to live in the home for the rest of his/her life, and is generally only responsible for ordinary recurring expenses (water, heat, taxes, home insurance, lawn care, etc).  This means that the person who will take possession of the home following the surviving spouse’s death is generally responsible for the other expenses (i.e. a major roof repair).  

 

 

For example, if John and Jane were married and lived in a house together, that house is the matrimonial home.  Even if John left the house to his son Jack, when John passes away, Jane will still be allowed to live in the matrimonial home and would only have to pay ordinary recurring expenses.  Jack will have to pay any other expenses.  Once Jane passes away, Jack will own the home and be able to do whatever he wants with it.  If John and Jane split their time between 2 houses and both were left to Jack, Jane can only choose to live in one of those houses.

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Altering a Will

 It is possible to alter, or change, a will.  A will can be altered by:

a. Following the same formalities that are required to create a will;  

i. Alterations to formal wills require two signed witnesses.

ii. Alterations to holograph wills require the testator to have hand written the alteration and signed the document.

iii. Alterations to a soldier’s or mariner’s will requires the testator or a person acting in the presence and direction of the testator to sign the alteration. 

b. If the document is physically changed (for example: a name is physically cut out), and the change is not done following the correct method of alteration for the type of will, then the court may allow for the original words of the will to be determined and restored by any means that the court decides are appropriate. 

 

 A codicil is a separate document used to modify a will. It can be used to make changes to an existing will without having to write a new will. The codicil must make it clear which sections of the will it is meant to change, and should be dated, signed and witnessed. It should be noted that a codicil does not need to be in the same format as the will.  This means that, for example, someone can draft a holograph (handwritten) codicil to alter a formal will.

 

 If you become separated, divorced, have children, your financial situation changes, or you experience a death in the family, you should review your will. 

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Revoking a Will

 A will can be revoked at any time. A testator can revoke a will so long as it is done voluntarily and with the intention to revoke the will. A testator can show their intention to revoke their will by:

a. Making a written declaration of his/her intention to revoke a will (a codicil); 

i. This declaration must follow the same formalities as those required to create a will.  

ii. When a testator creates two or more wills and there is conflict between them, the newer document will overrule the older one.

b. Performing an act of destruction demonstrating his/her intention to revoke the will.  

i. This includes burning, tearing, or shredding the will.  

ii. The testator must both fully destroy the will and clearly intend to revoke it. 

 

 (Also note the special provisions for revoking a mutual or joint will discussed above)

 

 Under the Wills and Succession Act a will is automatically revoked when

a. A married couple becomes divorced or ending a relationship now automatically revokes gifts to ex-spouses or former adult independent partners if the parties were divorced or became adult interdependent partners after February 1, 2012 (Wills and Succession Act s.25). 

 

 If the beginning or breakdown of the marriage/relationship occurred prior to February 1, 2012, you should consult the Wills and Intestate Succession Acts to see how the old rules apply. 

 

Getting married or starting an adult interdependent partnership no longer automatically revokes gifts under a will (if the marriage or new relationship began after February 1, 2012)

 

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General Issues

The Testator

 A testator must have the mental capacity to make a will. This means the testator must understand:

a. What a will is;

b. That he/she is making a will;

c. What property he/she has to distribute of;  

d. The identity of people who have claims to the estate; and

e. The ability to consider the relationship between the identity of the beneficiary and the property they are receiving. 

 

Witnesses

 Beneficiaries and their spouses should NOT be witnesses to the will; if the beneficiary acts as a witness their gifts from the will could be cancelled. Beneficiaries can either be specifically named in a will or become identifiable by the time of execution of a will. For example, a will could say, “I leave everything to my son, John.” John is a specifically named beneficiary and should not be a witness to the will.

 

 However, if only two (2) witnesses are required and a beneficiary signs the will as a third witness, his or her gift is still valid. Where no witnesses are required, as for holograph and soldier’s wills, a beneficiary may sign as a witness.

 

 A will is not invalidated because one of the witnesses was, or has since become, incompetent (now lacks capacity to understand the document because of mental or physical disability). 

  

Minors

 Generally, minors do not need a will. A will created by a minor will only be valid if the minor is or has been married or in an adult interdependent partnership, if the minor was an active member of the Canadian Forces, or was a Mariner at the time the will was made. A minor may also apply to the Court to make a will under s.36 of the Wills and Succession Act. In the application a minor must show they have the mental capacity to make a will and the request must be reasonable.

 

Informing Others About Your Will

 Make sure that people know you have written a will, and that you have told people where the will is located. This will help to make sure that your intentions are followed after your death. Your will should be stored in a safe location because if the will is lost or destroyed then it cannot be used to distribute your property, and the rules used for people who die intestate (discussed below in Dying Without a Will) will be applied instead. 

 

 It is important to let people know what property you have in your estate. It is a good idea to keep a list of your property (including debts) with your will to make sure that all your property is found and distributed.

 

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Dying Without a Will 

 A person is “intestate” if they die without a will. In Alberta, an intestate estate is distributed under Part III of the Wills and Succession Act. The rules below apply to deaths that occurred after February 1, 2012. Under this Act, if a person dies:

a. With a surviving spouse or Adult Interdependent Partner but no children then the entire estate passes to the surviving spouse;  

b. With a surviving spouse/adult independent partner and surviving children:

i. If the children are also the children of the surviving spouse/adult independent partner, the entire estate goes to the surviving spouse/adult independent partner

ii. If the children are not descendants of the surviving spouse/partner:

1. The surviving spouse/partner receives either the prescribed amount ($150,000.00) or 50% of the estate, whichever amount is larger;

2. The remainder is distributed between the children 

c. With no children, and both a spouse and an Adult Interdependent Partner then the estate will be divided with ½ going to the spouse and ½  going to the Adult Interdependent Partner

d. When the testator and the surviving spouse have been living apart for at least 2 years, have a declaration of irreconcilability under the Family Law Act or are under another agreement showing the intention to end the marriage, the living spouse is considered predeceased (treated the same as if they had died before the testator) and is not entitled to any gifts from the testator’s estate 

e. Without a surviving spouse or surviving children 

i. The entire estate will pass to the person’s parent(s).

ii. If no parents are still alive, the entire estate will be split evenly amongst the person’s surviving siblings and their descendants (your nieces/nephews, grandnieces/grandnephews).

iii. If there are no living relatives from the parental line, then the estate will be split 50/50 through your maternal and paternal grandparent lines (starting with your grandparents then moving to aunts/uncles, then cousins). 

iv. If there are no living relatives from one side (maternal or paternal), 100% of the estate is passed down the other side.

v. If there are no living relatives from either grandparent line, the estate passes to relatives from your great-grandparent line (ending with great aunts/uncles).

vi. If a relative cannot be found within 2 years then the net value of the estate will pass to the Crown of Alberta (government). The Crown holds the value of the estate for 10 years, during which time a valid beneficiary can still come forward to claim the property. After 10 years the remaining property belongs to the Crown.

 

Note: For deaths that occurred prior to February 1, 2012, please consult the Intestate Succession Act. 

 

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Personal Directives (Living Wills)

What is a Personal Directive? 

 A personal directive is a legal written document that gives authority to an agent to make non-financial decisions on your behalf (for example: decisions regarding the health and medical treatment of the maker). Personal directives are like wills, but are designed to take effect when you are still living but are incapable of making certain personal decisions.

 

 A personal directive may include information and instructions on personal matters like: who will act as your agent and make decisions on your behalf? Who will determine your capacity? Who is to be notified that the personal directive has come into effect? Who may access your confidential information? A personal directive can give a person authority to make all non-financial decisions for you, including medical decisions and who shall temporarily care for and educate any minor children.  

 

 Making a personal directive is optional. However, if you don’t select an agent to make decisions, in emergency situations a health care provider will assign a close relative when you are no longer capable of making decisions for yourself. A personal directive allows you to choose who will be making important decisions for you. In Alberta Personal Directives Act, outlines the process and rules for making a personal directive. 

 

Formalities

 To be valid, a personal directive must be in writing, dated, and signed in the presence of one witness. If you cannot physically sign the personal directive, someone else can sign it on your behalf in the presence of a witness. Witnesses to the signing CANNOT include the designated agent, the agent’s spouse, the spouse of the person creating the personal directive, the person signing on behalf the creator or that person’s spouse.

 

 A person can choose to register their personal directive with the Personal Directives Registry.

 

You can register online through Alberta Secure Access Service (ASAS) at https://tracs.finance.gov.ab.ca/ . To register by mail call the office of the Public Guardian and Trustee at 1-877-427-4525 and ask for the personal directive registration form to be sent to you to be completed and mailed back. 

 

 For more information about registering please visit: http://humanservices.alberta.ca/guardianship-trusteeship/register-a-personal-directive.html

 

Capacity

 A personal directive will come into effect when you no longer have the capacity to make a decision. You may choose two (2) service providers (at least one of which is a physician or psychologist) who can provide a written declaration that you have lost capacity. A personal directive no longer has effect when you regain capacity or pass away.  

 

 You can regain capacity (for example, after recovery from illness or injury). If the agent and a service provider disagree about capacity, two service providers, one of who is a physician or psychologist, must certify the person who created the personal directive.

 

Agents (Personal Directives Act Part 3)

 Agents must be over 18 years of age and have the capacity to make personal decisions on your behalf. There is no limit on the number of agents you can list in a personal directive. If two (2) agents cannot agree, the first agent in the list gets to make the decision. If there are more than two (2) agents, the majority will make the decision.  

 

 According to the Personal Directives Act, an agent’s decision has the same effect as if the maker (the person who wrote the personal directive) had made the decision him/herself. However, agents CANNOT make decisions about: 

a. Financial matters (requires Power of Attorney)

b. Psychosurgery (defined in the Mental Health Act);

c. Medically unnecessary sterilization; 

d. Removal of tissue from the maker’s body for transplant or research; or

e. Participation in medical research that offers little or no potential benefit to the maker,

 Unless the agent has been given explicit authority in the personal directive to make such decisions.  

 

 Agents must follow the instructions of the personal directive and, if possible, ask the maker about the decision. If the personal directive doesn’t have instructions, the agent must make the decisions that he/she believes the maker would have made in that situation. This should be based on the maker’s wishes, beliefs, and values. The agent must make the decisions that are in the best interests of the maker.  

 

 An agent won’t be liable for any decision that is made in good faith. Actions performed in good faith cannot affect the agent’s entitlement to a gift under the maker’s will or the proceeds of the maker’s life insurance policy.

 

Revoking a Personal Directive (Personal Directives Act s.8) 

 A personal directive may be revoked by:

a. Its expiry date, if you choose to add one to the personal directive 

b. Being replaced by a newer personal directive,  

c. Destroying the personal directive document with the intention of revoking it or,

d. Creating a document revoking the personal directive that complies with all the formalities of a personal directive (in writing, signed, dated, witnessed).

 

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Power of Attorney

 Power of attorney is a legal document that gives one person the power to make financial and legal decisions on someone else’s behalf. Any competent adult or financial institution can be appointed power of attorney.

 

 The donor is the person who is creating the power of attorney document, preparing for the possibility that someone else will need to manage his or her financial and legal affairs. The attorney is the person or institution who will receive the power to manage the finances and legal affairs of the donor. The attorney should be someone that you trust and believe is capable of managing your finances and any legal matters. 

 

 A properly drafted power of attorney must:

a. Be in writing,

b. Be dated, 

c. Be signed by the donor in the presence of a witness, and 

d. Be signed by a witness in the presence of the donor.  

 

 The power of attorney can take effect either:

a. Immediately

b. When the donor becomes mentally incapacitated

c. On an event that the donor specifies in the document. 

 

 A donor can revoke or change his/her power of attorney in writing. However, in order to alter the document the donor must have the capacity to make the changes, and the formalities listed above must be followed. If the power of attorney is being revoked it is important to notify the attorney and others who may be affected.

 

 Terminating a power of attorney

 

 Except when there is an irrevocable power of attorney a power of attorney terminates when the following events happen:

The donor revoked the power of attorney in writing when they have capacity;

The person named as attorney rejects their appointment as the attorney and informs the donor; 

The donor or the attorney dies;

The court grants a trusteeship order respecting the donor or attorney;

The court grants a termination order for the power of attorney. 

 

 Although it is possible to create a power of attorney without the help of a lawyer, it is highly recommended that you retain a lawyer when creating one.

 

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 Referral Numbers

 

Legal Services Center (780) 427-7575
This service is a program of Legal Aid Alberta that provides free legal information, referrals, and advice to Albertans over the phone (based on falling within certain income guidelines).
Lawyer Referral Services 1-800-661-1095 (toll free)
This service provides the names of three lawyers and the caller is entitled to a ½ hour session with each.
Student Legal Services of Edmonton (780) 492-2226
Civil/Family Project (780) 492-8244
Please note that Student Legal Services cannot help people create a Will.
Oak Net  
This website provides information for older adults
Canadian Legal FAQs  
This website provides information on a number of legal topics
CanLII  
This website displays Canadian Legislation and Cases.

 

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