Is My Will Valid In Alberta?
Our wills and estates lawyers are often asked about will validity in Alberta. This may be the most frequencies asked questions about wills. There are many factors that determine if a will is valid. Due to the technical nature of wills, it is important to have your will reviewed by an Alberta will lawyer. The wills Lawyers of Kahane Law Office (403-225-8810) in Calgary, Alberta can help you determine if your will is valid.
Factors That Determine Will Validity
There are many factors that determine will validity. As will be set out below, it is not possible for a lawyer to determine if a will is valid in Alberta over the phone. Alberta residency does not have to be proven.
Was The Will Properly Executed
One of the most common issues with will validity is how it is executed. The law around valid will execution is very specific. One of the factors that makes it difficult for a wills and estates lawyer to determine if a will is valid in Alberta is knowing how the will was executed. Under this will validity check list , we will need to know:
- The number of witnesses
- Who was present when the will was executed
- Where testator signed on the will
- Was a prohibited person one of the witnesses (such as a beneficiary)
- Was anything added after (in time and physically on the will) it was signed and witnessed
Proper Valid Will Language
There are certain terms that are required in a a will. Without those terms and words, the will may not be functional in Alberta. For instance, if they will fails to contain language that gifts the assets to a beneficiary.
Prohibited Will Provisions
The courts have ruled that there are certain types of provisions that are not valid in wills. You cannot require a beneficiary to do anything illegal. Will validity or will provision validity can be challenged if a testator tries to control someone from “beyond the grave”. You also cannot use your will to distribute the assets owned by someone else.
Required Provisions / Components
A will requires certain elements to be valid. If a will does not properly distribute the estates assets, part of the will may be invalid, you may need to do both probate and deal with an intestacy or they entire will may fail. Not having will validity can be worse than having no will at all as it will often lead to disputes and/or litigation.
Is the Will Self Proving
For a will to be probated, there is a specific form required in Alberta. This form is a sworn affidavit of a witness confirming that they witnessed the will being signed. The specific form of this affidavit is set by law in Alberta. Without it, the will validity may be challenged. If you are having a will prepared by a lawyer, it is important to make sure that they include this document or you may need to hunt down one of the witnesses in order to prove will validity during the probate process.
Did The Testator Have Capacity
This is a difficult thing for a lawyer to review when determining will validity. For a will to be valid, the testator must have capacity. A lawyer can review the circumstances of the testator when the will was executed. This does not prove capacity. Lawyers can review if the person had a diagnosis of a medical condition that would affect capacity. They can see if a person was on painkillers, under extreme pain or pressure, or if they had a history of substance abuse. If there is any concern about capacity, it is a good idea to have a doctors note (dated around the same time as the will) stating that the person did have mental capacity.
Is A Foreign Will Valid
Lawyers are member of specific law societies. A lawyer who is only a member of the Law Society of Alberta, cannot give legal advice about the of a foreign country. There may be tie s where, to prove will validity, you need a lawyer from the place the will was done to review the will.
What Is The Cost of Reviewing My Will’s Validity
Normally, reviewing will validity is done on an hourly basis. How long this takes will depend on the length of the will and how long it takes to address any concerns you may have. Also, it will depend on the complexity of the will’s provisions. Occasionally we are asked to review wills with provisions that may be challenged and legal research will be required to determine the will validity. In addition there are some aspect of will validity that a lawyer will not be able to ascertain with certainty (such as capacity). There are certainly times when it is less expensive to simply draft a new will from scratch than have a will reviewed and corrected.
What If A Will Need Changes to Be Valid
Wills with will validity challenges can be fixed. A legal document, called a codicil, is used to make changes to a will. Like with wills, to be valid, a codicil needs to be in a specific form. This link will provide you will more information on how to change a will with a codicil. There are some aspects of will validity that cannot be fixed with a codicil such as capacity and execution issues.
Lawyers For Determining Will Validity
The will review lawyers at Kahane Law Office in Calgary, Alberta are happy to help you determine will validity. We help you know when will changes are needed. You can reach us toll-free at 1-877-225-8817, 403-225-8810 locally or email us directly here.