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Everything you need to know about writing a Will

What is a Will?

A Will is a legal document that expresses a person’s wishes on how their property is to be distributed, who is to be the guardian of their underaged children, if applicable, and who is to manage their property before its distribution, after their death.

Why do you need a Will?

Having a Will is essential to:

  • Designate your preferred individuals as guardian(s) for your children.
  • Distribute your assets, after your death, according to your wishes.
  • Create a trust for underaged beneficiaries.
  • Avoid unnecessary stress for your surviving family members.
  • To continue or discontinue businesses or partnerships.
  • To make decisions on either keeping assets in their original form or converting them into, for example, cash before distributing to beneficiaries.
  • To elect to invest or not to invest on behalf of your estate

For further details on the importance of a Will, contact your local and knowledgeable Estate Attorney at the Edmonton Law Office.

Who can make a Will?

  • Any individual who is 18 years old or older can make a Will if the individual has the mental capacity to do so.
  • Under the Wills and Succession Act, an individual who is under the age of 18 years can still make a Will if the individual has the mental capacity to do so, and if the individual:
    • has or has had a spouse or adult interdependent partner;
    • is a member of
      • (i) a regular force as defined in the National Defence Act (Canada), or
      • (ii) another component of the Canadian Forces and is, at the time of making the will, placed on active service under the National Defence Act (Canada); or
    • is authorized by an order of the Court under section 36 of the Wills and Succession Act.

What are the three common types of Wills in Alberta?

A Will can have three distinct forms:

  1. Formal;
  2. Holograph; and
  3. Military

The formalities of drafting these three forms of Will vary.

What are the legal effects of a Will?

Through a Will, a person can give away or distribute property that he or she is legally entitled to.

Formalities for a Will

There are distinct formalities for each form of a Will under the Wills and Succession Act:

  1. Formal Will:
    • A Will may be made in writing signed by an individual if
      1. the individual makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and
      2. each of the witnesses signs the Will in the presence of the individual.
  1. Holographic Will:
    • A Will may be made in writing that is wholly in an individual’s own handwriting and signed by the individual without the presence or signature of a witness or any other formality. However, Holographic Wills are quite rare, and are a bad idea as so many things can go wrong in drafting them.  Most individuals prefer to hire a Wills and Estate lawyer as they charge a relatively small fixed fee for a Will. Hiring a Wills and Estate attorney ensures that a proper and legally valid Will is drafted which deals with all the important matters relating to dependants, children, and estate.  For more information, contact a trusted Wills and Estate Attorney at the Edmonton Law Office by calling our office at (780) 784-6666.
  1. Military Will:
    • A member of the Canadian Forces while placed on active service pursuant to the National Defence Act (Canada), or a member of any other naval, land or air force while on active service, may make a will by signing it, without the presence or signature of a witness or any other formality.  Similar to Holographic Wills, Military Wills are generally a bad idea as they are usually unclear, and lead to common mistakes that can result in costly court applications.  Contact your trusted and local Estate Attorney at the Edmonton Law Office for assistance in drafting a Will for a very reasonable fixed fee.

Changes to a Will

Your Will can always be changed.  There are two ways to change a Will:

  1. Rewrite a new Will and destroy the old Will; or
  2. Make changes by a document called a “codicil”.

What is a “Codicil”?

A Codicil is a testamentary document through which changes can be made to a Will. For the changes to be made, a codicil must make references to old and corresponding new changes to the Will.

A Codicil must be confined to the requirements of a Will. It is, therefore, only appropriate where a few minor changes are to be made to a Will.

As a Codicil requires the same care and diligence of a Will, it is usually better to draft a new Will.  Contact Edmonton Law Office if you require assistance in drafting a new Will.

What circumstances should prompt you to review your Will?

  • Divorce/Separation;
  • Birth of a child;
  • Change in financial circumstances;
  • Death of trustee or beneficiary;
  • Several other factors may warrant a review of your Will. Contact the Estate Lawyer at the Edmonton Law Office for additional information.

What happens if someone dies without a Will?

A person who dies without a Will is said to have died in “intestate”.

What is an “intestate estate”?

An intestate estate is an estate or part of an estate that is not disposed of by a Will.

Distribution of an intestate estate

The distribution of an intestate estate involves transfers to family members of the deceased (spouses, adult interdependent partners, children, and other descendants). The distribution and transfer depend on hierarchal rules relating to surviving family members.

It is therefore extremely important to have a valid Will if an individual wants his or her wishes to be followed in the distribution of his/her estate.

For further information on intestate Estate distribution, please contact a Wills & Estate lawyer at the Edmonton Law Office.

Disclaimer: All the information provided on this page is published in good faith and for general information purpose only. Edmonton Law Office does not make any warranties about the completeness, reliability, and accuracy of this information. Laws are constantly changing.  The content contained in this article is only relevant at the time of writing. For more information, please contact the Edmonton Law Office and our knowledgeable Wills & Estate lawyers will be happy to assist you.

photo of a father and daughter talking about the father's will after preparing a will through a trusted Wills and Estates lawyer in Edmonton
Regardless of your age and health, it is important to have a legally-sound Will that effectively outlines your wishes for how to distribute your assets and estate after you die. Contact Edmonton Law Office today at (780) 784-6666 and speak to one of our experienced Wills & Estates lawyers.

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