Legal Brief for January, 2012

The New Wills and Succession Act

The Province of Alberta has passed a new law that introduces a number of changes to the law in Alberta relating to the making of Wills and the rights and obligations of people when they make their Wills and those inheriting from them, and also in respect of the applicable rules when people die without having made a Will.  The new law is known as the Wills And Succession Act.  Although the law has been passed by the Legislature of Alberta it has not yet been actually proclaimed as being in force yet.  That date has not yet been announced by the Government.  It is anticipated that the date of proclamation may be February 1st, 2012.

One important point to keep in mind is that any Wills signed before the new Act comes into force remain fully valid, and will be governed by the law in place at the time the Will was made.  Therefore no one needs to redo their Will just because it was done prior to the new law coming into effect.  However, any Wills made in the Province of Alberta after the new Act is proclaimed will be governed by the new Act.

The basic rules applicable to the making of Wills are unaltered - a person must still be at least 18 years old, they must be of "sound mind", the Will must be "in writing" (i.e. a typed document or hand written), and the person making the Will must sign it.  The new Act does introduce a number of changes to some of the minor formalities involved with deciding on the validity of Wills.

The Act enhances the rights of spouses to a share of their deceased spouse's estate, basically importing concepts from the Matrimonial Property Act into the rights that a spouse will now have to the estate of the other spouse.  The new Act also does away with some rules of intrepretation of the circumstances of death the previously determined who would be entitled to receive the proceeds of an estate.

The Act also changes some of the rules applicable in situations where a person dies without having made a Will (known as "an intestacy").  Under the previous law, a spouse would be entitled only to the first $40,000.00 in value from the estate of the deceased spouse, with the balance then being divided equally between the surviving spouse and any children.  Under the new law, the surviving spouse will be entitled to receive the whole of the estate if any surviving children were all children born of that relationship.  These changes will apply to all estates where a person passes away without a Will after the new Act comes into effect.

If you have any questions or concerns about the changes in this area of the law, you should consult a lawyer for detailed legal advice on your own personal situation.