If you are 18 or older and live in Alberta, you should have a will. Even the Government of Alberta says so. If you die without a will («intestate» in legal terminology), the default rules of the law determine what happens to your estate. It may go to relatives whom you dislike or do not even know; it may even go to the provincial government.
All of us will die and will therefore need a will eventually. Everyone knows that. Many adults, however, hesitate to write a will because they imagine that the process is complicated and expensive. But a will can be written cheaply or even for no cost beyond paper and ink.
This article explains the three ways in which you can write a will that is valid in Alberta. First, however, take note of the following three requirements, which apply no matter how you write your will:
- You must have testamentary capacity. First, you must be at least 18 years of age (unless you are or have been married, serve in certain capacities in the armed forces, or have been authorised by a court to create a will). Most likely you satisfy this requirement. Second, you must have the mental ability to understand what you are doing. Since you are reading this document, you probably have the mental capacity to write a will. But you could lose that capacity unexpectedly to injury or illness, so you should consider writing a will now, while you still can.
- Your will must be in writing. Few people would express their last wishes in the form of an interpretive dance, an oil painting, or a piece of macramé. But some have done so in an audio or video recording, or through spoken promises, without knowing that they were not creating a valid will. Not for nothing do we speak of writing a will. Subject to that formal restriction, you are welcome to indulge your creative muse. Feel free to present your will in the form of an opera (try Puccini’s Gianni Schicchi for inspiration) or in rhyming couplets of iambic pentameter. Just please do not emulate the style of Finnegans Wake.
- You must sign your will. (While you are at it, please initial each page in the lower right corner if the will runs to more than one page.) If you cannot produce your signature or even a mark, you may instruct someone else to sign the will for you. I once had the rare privilege of signing someone else’s will. The person in question had lost the use of her hands and most of the rest of her body but still was able to communicate. I devised a procedure through which she could create a will that was very likely to survive the anticipated legal challenges.
In Alberta, you may write your will entirely by hand. This type of will, known as a holographic will, need not be witnessed; you simply write it yourself and sign it. (As with any will, it is best to state the date on which the will was made.)
Note that your holographic will must be entirely in your own handwriting. You may not have anyone else write it for you, nor may you use a typewriter, a computer, or any other mechanical device for any part of it. If you have not used a pen in years, I can only recommend practising your Palmer drills or else using one of the other two types of wills (see below).
You should write your holographic will in ink, not with a pencil. In an emergency, however, you may have to resort to unorthodox means. In 1948, the unfortunate but perspicacious Mr Cecil George Harris of Rosetown, Saskatchewan, used a pocket knife to scratch his will into the paint on the fender of the tractor under which he had become crushed. His unconventional but valid will is on display at the library of the College of Law at the University of Saskatchewan.
Holographic wills have several advantages. First, they cost practically nothing. Second, they can be written at any time, without the need for witnesses. This fact makes them especially suitable for emergencies: a dying person, for instance, can write a quick holographic will if there is no time for anything more formal. Third, they can be written privately, without involving anyone else.
There are also disadvantages. Chief among these is the fact that holographic wills are in practice written without legal advice; thus they are very likely to contain errors or other flaws. In an emergency, a holographic will may be better than none at all. When possible, however, it is best to get a lawyer’s help rather than attempting to prepare this important legal document on your own.
In addition, even fairly simple wills tend to be long, and copying the text out by hand can be laborious. This is especially true because a holographic will should be free of handwritten corrections. Any little mistake may therefore require recopying the page. Also, the court will accept a holographic will only if it is satisfied that the handwriting and signature are authentic.
Please note that many other jurisdictions, including some in Canada, do not allow holographic wills.
If you are on active service in the Canadian Forces, or indeed in any other naval, land, or air force, you may write a military will. Like a holographic will, a military will does not require witnesses. Unlike a holographic will, however, it does not have to be handwritten by the testator; it may be typewritten, dictated to a scribe, or written by other means.
Military wills are rare nowadays. Historically they filled a real need for soldiers who might not have been able to satisfy the usual formal requirements for a will. Today the Canadian Forces recommend creating a will before beginning active service.
The vast majority of wills in Alberta are formal wills. To create a formal will, you must sign it in the presence of two witnesses together and have them sign it as well. One witness is not enough. The witnesses must see you sign the will but not need to know what it says, or even that it is a will.
Most adults with mental capacity may witness a will, but please note that the witnesses and their spouses or adult interdependent partners generally cannot receive a gift made in the will; therefore, you should select your witnesses accordingly.
It is best to get an affidavit from one of the witnesses at the time when the will is signed. The affidavit will be needed when the will goes to probate, but by then the witnesses may be unavailable or otherwise unable to attest to the signing and witnessing of the will. Obtaining the affidavit immediately is simplest and best.
Most people have a lawyer prepare a formal will for them. Some people resort to kits and forms that can be purchased from stationery stores or on the Internet, but they frequently make serious mistakes, such as failing to get enough qualified witnesses, expressing their wishes ambiguously, or omitting important provisions. Although the do-it-yourself approach may suffice for the simplest needs, often it is best to seek legal advice. A capable lawyer can discuss your needs thoroughly, advise you on your options and your obligations, develop a good plan for your estate, raise issues that you may not have considered, provide for children or other dependants, address complexities (these are surprisingly common), help you to save on taxes and expenses, and draft a will so as to reduce risks such as errors and legal challenges. Consider seeking legal advice on your will if any of the following applies:
- You are not confident in your ability to write a good will yourself.
- You have a large amount of assets.
- You have assets outside Alberta, even in other parts of Canada.
- You have children from multiple relationships.
- You have stepchildren.
- You have children or other dependants with special needs.
- You act as a parent to grandchildren or great-grandchildren.
- You plan to marry, be divorced, or adopt children.
- You have obligations of support to a previous spouse.
- You wish to make a mutual will with your spouse or adult interdependent partner, whereby each of you agrees not to change her will without the consent of the other.
- You have business interests, including sole proprietorships, partnerships, corporations, professional practices, and rental property.
- You need to set up trusts.
- You wish to provide for children or others who cannot be trusted to manage a lump sum of money.
- You wish to leave something to someone only for the rest of that person’s life and then have it pass to someone else.
- You need help with arranging for someone to take care of your children or pets.
- You need advice on selecting an executor.
- You may be liable for taxes in multiple jurisdictions.
- You want advice on avoiding taxes and other expenses.
- You wish to make unusual provisions in your will, especially those that are complex or of questionable legality.
- You wish to disinherit a relative (exclude that person from your will).
- You need help with deciding what to do if a beneficiary of your will dies before you or otherwise cannot receive an inheritance.
- You are an Indian according to the Indian Act and you live on a reserve or on Crown lands.
- You are a citizen of more than one country.
- You are a permanent resident of the United States.
- You have wills in other jurisdictions.
- You are under pressure to write or change your will against your wishes.
- You are afraid that your will may be challenged in court.
- You cannot sign the will yourself.
- You do not know your rights and responsibilities.
- You need general help with planning your estate.
- You have legal questions.