Legal Brief for January, 2013

A Short History of Wills

Like most of our Canadian legal practices and concepts, our laws on wills derive for the most part from the laws of England passed on to us over the years.  Wills were not an English invention however, as there is evidence that they existed in Rome and Greece more than 2,000 years ago, and according to legal historians the development of wills in England owes much to concepts from the Roman legal system.

Lawyers are often asked why the formal title that appears on a will is "Last Will and Testament". Why not just have it called a "Will"? The reference to both "Will" and "Testament" is reflection of the two types of property that can be passed on - which are real property (i.e. real estate) and personal property (any property that is not real property).  In early English law, a document which provided for passing on of personal property was a "testament", while that which dealt with real property was a "will".  As a modern will deals with both types of property, it is therefore given the joint title of "Last Will and Testament" (with the "Last" being inserted to denote that it is the most recent or current will of the maker of the will).

Citizens of the realm in England were not always free to dispose of their property as we currently have the freedom to do today.  In the years following the Norman conquest in 1066 a variety of laws were enacted over the centuries that stipulated for example that a man's land holdings (women were not allowed to own property) were to be left to the oldest male heir. Some of Jane Austen's heroines had to gamely struggle to deal with the harmful consequences of such situations.  The laws of "succession" as they are commonly known were given a thorough overhaul and updating in England with the Wills Act of 1837, which established most of the rules relating to wills that are followed to this day in Canada (at least in all of the provinces except for Quebec, which has its own legal system for these types of matters).

The laws governing wills in Canada are a matter of provincial jurisction under the federal division of legislative powers in Canada between the federal and provincial levels of government.  The laws are not static, as they continue to evolve to reflect changing social or economic conditions.  The laws of Alberta on wills for example just underwent an updating earlier this year, when the Wills and Succession Act came into force on February 1st, 2012.  Although the basic rules for a valid will were not changed by the Act, it did amend a number of provisions in the previous Wills Act which had proven to be troublesome over the years.  There will undoubtedly continue to be changes in the years to come.