What makes a Will valid in Alberta?

Understanding

Those who are unfamilar with wills and who have never had one often typically wonder:

• If I want a will, how am I supposed to get it prepared?
• Is a lawyer required?
• Is there an age requirement? Is there a property requirement?
• How do I make it "final"? Do I just sign it?
• Where do I sign it? Do I have to sign it at a special location?
• Do I need to sign it on just one page or on every page?
• Whom do I sign it with?
• Do I need witnesses? Who is allowed to be a witness?
• Does it need to be stamped or sealed?

Basis

The law regarding wills in Canada is set at the provincial level, with each province having its own wills statute.

The statute for the province of Alberta is the Wills and Succession Act, S.A. 2010, c. W-12.2.

We will directly examine the sections of it that give answers to these questions and the overall question of what makes a valid will in Alberta.

As we proceed, know that

• ellipses - ... - represent parts omitted intentionally due to be being considered extraneous,
• square brackets - [] - represent a paraphrasing of original parts for brevity, and
• the word "testator" means "will-maker" or "person whose will it is".

An essential summary is given at the end of the article if you wish to skip the deep dive.

Age & Mental Capacity

A person must be an adult and have mental capacity in order to make a will.

The age limitation coincides with general limitations on the competency of minors to deal with property. The requirement of mental capacity reflects the need that the intent a person expresses regarding their property be lucid, informed, and meaningful.

There are some obscure exceptions to the requirement to be an adult. A will made by someone who is a minor may still be valid if they have or have had a spouse or partner, are a member of the Canadian military, or obtain the Court's special permission to do so.

13 (1) An individual who is 18 years of age or older may make... a will if the individual has the mental capacity to do so.

(2) An individual who is under 18 years of age may make... a will if the individual has the mental capacity to do so and if the individual

(a) has or has had a spouse or adult interdependent partner,

(b) 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

(c) is authorized by an order of the Court [made on application].

Execution

The conventional form of proper execution - that is, proper signing and witnessing - of a will is that it must be drafted in writing, signed at the end by the will-maker in the simultaneous presence of two (2) witnesses, and then signed by the said witnesses in the presence of the will-maker.

14 To be valid, a will

(a) must be made in writing, [and]

(b) must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will...

...

15 A will may be made by a writing signed by the testator if

(a) the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and

(b) each of the witnesses signs the will in the presence of the testator.

The requirement of two witnesses to the signing serves to ensure that it did happen and was not a forgery. The requirement provides a baseline assurance; one remains free to challenge in Court a signing where the witnessing was suspect.

There is no requirement of a lawyer's involvement - either in preparation or signing and witnessing. A lawyer's role has traditionally been to advise - to take instructions and draft the Will using common will templates and software.

However, now, due to the convenience of the internet, we provide direct access to the will-drafting software that a lawyer would use, cutting out the need for one.

Thus one is legally free to choose whether to complete a will through a lawyer, a traditional paper will kit, or a modern will-drafting platform such as ours.

There is no requirement of any notarization, stamp, or other special marking beyond the validation provided by the will-maker and the witness' signatures.

There is no specified minimum property requirement to write a will. A will speaks to "what the person owns at the time of their death, however much it may be".

Note that the rule that a will-maker sign their will has an alternative part. Instead of signing their will themselves as one normally would, a will-maker may direct another person to sign their will on their behalf and acknowledge it as such in front of the witnesses. An otherwise mentally capable and communicative will-maker might do such a "substitute signing" where they physically cannot grip a pen and sign for themselves due to disability or deficiency in the hands.

19 (1) A testator may sign a will, other than a [holograph] will ..., by having another individual sign on the testator’s behalf, at the testator’s direction and in the testator’s presence.

Remote Execution

It has normally been required that witnessing be done in-person: the will-maker and the two witnesses must be physically present together, in front of each other, for the signing event.

In 2020, during the COVID outbreak, remote witnessing of a will became allowed.

The definition of "presence" was expanded to allow for not just witnessing in-person but witnessing by live videoconferencing so long as at least one witness was an advising lawyer.

This would necessitate signing in "counterparts" and it was allowed - separate copies of the will for each of the will-maker and witnesses to sign their portion individually at their end could then be read together as a bundle representing a single fully signed copy.

19.1 (1) ... persons are deemed to be in each other’s presence for the purposes of [execution] while the persons are connected to each other by an electronic method of communication in which they are able to see, hear and communicate with each other in real time.

(2) Subsection (1) applies only if a [practicing] lawyer ... is providing the testator with legal advice and services respecting the making, signing and witnessing of the will.

(3) If a will is executed by an electronic method of communication in which the persons are ... in each other’s presence, the requirements of [execution] may be fulfilled by the persons signing or initialling complete, identical copies of the will in counterpart, which together constitute the will.

(4) [Such] copies of the will are identical even if there are minor, non-substantive differences in format or layout between the copies.

Witness Requirements - Mental Capacity & Substitute Signing

A witness must have mental capacity. A substitute signer cannot also be a witness.

That said, a will may survive and be saved against a witness who turns out to be or have been incapable of proving its execution.

20(1) An individual may be a witness to a signature of the testator if the individual has the mental capacity to do so.

(2) An individual who signs a will on behalf of a testator is not eligible to witness the signature of the testator.

...

(4) A will is not invalid only because ... (b) a witness to the signature of the testator was at the time of witnessing the signature, or afterwards became, incapable of proving the making of the will, or (c) more than 2 individuals witnessed the signature of the testator.

Witnessing Exceptions

The rule that there be witnesses is relaxed in certain cases.

A will that is entirely in the will-maker's handwriting with no computer-printed portions and that they sign does not require witnesses to be valid. This is known as a "holograph" will.

A will signed by a military member on active duty does not require witnesses to be valid. This is understandable for practical reasons which policy recognizes.

16 A will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality.

17 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.

Alterations

Any subsequent alteration made in a witnessed will must itself be properly signed to and witnessed. Any subsequent alteration made in a will wholly in the will-maker's own handwriting must itself be properly signed to. There is no statutory provision for alterations in military wills.

22 (1) Any writing, marking or obliteration made on a will

(a) is presumed to be made after the will is made, and

(b) is valid as an alteration of the will only if (i) in the case of a [witnessed] will ..., the alteration is made in accordance with [its rules of execution], [or] (ii) in the case of a [holograph] will ..., the alteration is made in accordance with [its rules of execution]...

Foreign

Alberta will liberally accept as valid a will from outside of Alberta or by someone from outside of Alberta if the will satisfies the requirements of the place where it or the will-maker is from.

42 As regards the manner and formalities of making a will, so far as it relates to an interest in [personal property], a will made either within or outside Alberta is valid and admissible to probate if it is made in accordance with the law in force at the time of its making in the place where

(a) the will was made,

(b) the testator was domiciled when the will was made, or

(c) the testator had his or her domicile of origin.

Constructive Validity

A will, will-like document, or alteration in a will that was not made or executed properly but is otherwise genuine may be retroactively deemed as valid, but only upon a lengthy, costly, improbable application to Court.

37 The Court may, on application, order that a writing is valid as a will ... despite that the writing was not made in accordance with [the rules of execution], if the Court is satisfied ... that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will ... .

38 The Court may, on application, order that a writing, marking or obliteration is valid as an alteration of a will, despite that the writing, marking or obliteration was not made in accordance with [the rules of alteration], if the Court is satisfied ... that it reflects the testamentary intentions of the testator and was intended by the testator to be an alteration of his or her will.

Witness, Substitute Signer & Interpreter Requirements - Conflicts of Interest

Prohibitions

On an otherwise valid will, a witness, substitute signer, assisting language interpreter, or the spouse or partner of any of them should not be a beneficiary under the will receiving any gift beyond a mere repayment for services. If they are then their gift is void.

21(1) ... a [gift] that is made by will to

(a) an individual who acts as a witness to the signature of the testator,

(b) an individual who signs the will on behalf of the testator ...,

(c) an interpreter who provided translation services in respect of the making of the will, or

(d) the spouse or adult interdependent partner of an individual described in clause (a), (b) or (c)

is void as against the individual, the spouse or adult interdependent partner of the individual and any individual claiming under any of them.

(2) A [gift] referred to [above] is not void (a) if it is a ... payment of remuneration...

Rationale

The rule that a witness, a substitute signer, an asssisting language interpreter, or their spouse or partner should not be a beneficiary does not invalidate a will fully upon not being properly observed but does invalidate it partially as to the improper individual's gift, which might as well be just as bad and may ruin a will-maker's intended plan for their assets.

The rule is a directed safeguard against the scenarios of malicious actors i) outright forging a person's signature, or without direction applying a substitute signature, on a will falsely claimed to be signed or acknowledged in front of them that has them as beneficiaries or ii) otherwise coercing or unduly influencing a person into signing, or directing and acknowledging substitute signing of, a will in front of them that has them as beneficiaries. The rule's consequence necessitates using as witnesses, substitute signers, and language interpreters independent persons who have no personal stake or role in the will and thus no incentive to fabricate or force its signing, presumptively ensuring the signing's veracity and independence.

Remedy

A will that by mere mistake and with no undue influence had a witness, a substitute signer, an assisting language interpreter, or their spouse or partner as a beneficiary and thus had their gift voided may have such gift retroactively "cured" as valid, but only upon a lengthy, costly, uncertain application to Court.

40(1) The Court may, on application, order that a [gift] referred to in section 21(1) is not void if the Court is satisfied that

(a) the testator intended to make the [gift] to the individual despite knowing that the individual was an individual described in section 21(1), and

(b) neither the individual nor the individual’s spouse or adult interdependent partner exercised any improper or undue influence over the testator.

Extended Summary

A will shall be valid in Alberta where:

• If the will was made outside of Alberta or by someone from outside of Alberta, it satisfies the requirements of the place where it was made or the will-maker was domiciled.
• If not, the will is
  • drafted in writing;
  • made by a will-maker who at the time
    • either is eighteen (18) years of age or older or, if under eighteen years of age, has or has had a spouse or adult interdependent partner or is a member of the Canadian military, and
    • has the mental capacity to do so;
  • signed at the end by the will-maker in any case or a substitute signer in their presence and at their direction in the case where the will is not entirely in the will-maker's handwriting; and,
  • if the will is not entirely in the will-maker's handwriting and the will-maker is not a military member on active duty,
    • in the simultaneous presence of two (2) or more witnesses who have the mental capacity to be witnesses and are not the substitute signer, either in-person or over live videoconferencing with at least one witness being an advising lawyer if the latter, so signed by the will-maker or acknowledged by the will-maker as having been signed by the will-maker or the substitute signer, and,
    • signed by the said witnesses in the presence of the will-maker, with, if over live videoconferencing, counterparts being allowed.
• If not properly meeting any set of formal requirements, the will is accepted as genuine by the Court upon application.

A subsequent alteration in a will shall be valid as per the above.

A beneficiary under an otherwise valid will should not be a witness, the substitute signer, an assisting language interpreter, or the spouse or partner of any of them. If they are then their gift is void against them or anyone claiming under them unless they and their spouse or partner are accepted as not having exercised undue influence upon the will-maker by the Court upon application.

Streamlining

This deep dive has shown the full web of the rules, replete with exceptions, alternatives, and remedies to an underlying conventional standard of will execution.

These exceptions and the like are obscure. They are interesting tidbits of information to know - but for academic purposes.

• At Your Final Will we recommend all young adults to prepare a will, though that does not extend to recommending a minor be mindful of it and contemplate reliance on antiquated categories of child solider and bride.
• While the alternative of substitute signing is available at law it is not something that we make provision for for the iota it might apply to. Wills are signed by their makers per the normal course.
• Remote witnessing was made a possibility under the social distancing mandates of COVID, and that is all that it should remain an artifact of; signing your will, your single testament, should be done by having your witnesses over to be with you, in the canonical way it's always been done and that was not a hassle except during a strange and brief period and that has no worthwhile reason to experiment and deviate from.
• While a fully self-handwritten will requiring no witnesses sounds like a convenience, it is completely unconventional and is worthless as to its contents for not having been prepared by a credible source.
• While the law provides for valid alterations, they should never be made. There is no shortage of cases of shoddy, hasty, or improper alterations being held invalid and of no effect, often even invalidating the will beyond the alteration itself. It is never worth it. This also applies to a handwritten addition made to a printed will before it is executed; unlike with the printed body, it later may not be certain whether the addition was present at the original execution or was made afterwards improperly, without its own execution. Therefore, overall, one should never make handwritten changes to a will. All intentions should be printed in, and where intentions need an update, one should make a new will through a provider of their choice.
• Curative court applications exist for defective executions but with straightforward instructions both clearly given and understood, they will never be.

Your Final Will does not deal in these exceptions and provides the conventional or standard form of will - machine-generated, Alberta-local, self-signed, doubly-witnessed, in-person, fully-compliant.

Essential Summary

With those obscurities and fallbacks excluded, we are left with the following distillation:

1. A will made outside of Alberta or by someone from outside of Alberta shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in Alberta shall be fully valid if it is
   1. singularly computer-printed, with no subsequent additions or alterations any time in handwriting or otherwise;
   2. signed at the end by the will-maker, who is then eighteen (18) years of age or older and has mental capacity, in the simultaneous presence of two (2) witnesses who have mental capacity; and,
   3. signed by the said witnesses in the presence of the will-maker.
2. A witness or a witness' spouse or partner should not be someone who is a beneficiary under the will. If they are then their gift is void.

Bottom Line

Here is the summary translated into actionable steps to having a valid will:

1. Obtain a will with us at Your Final Will by clicking Start for Free. The purchased package contains a set of instruction manuals that set out how to sign in the manner that follows.
2. Think of two (2) witnesses. They should not be anybody whom you've included in your will, and their spouse or partner should not be anybody whom you've included in your will. Good candidates would be someone like a friend, or a neighbour, or a co-worker.
3. Contact them and arrange a date and time for them to come to you in-person to witness your will.
4. On that date, print your will from your computer and have it ready. Do not make any additions or changes to it.
5. Invite your witnesses in. Give everyone a blue pen.
6. Turn to the last page of the will.
7. Print the information in the "city or town", "province or territory", "month", "date", and "year" fields.
8. In front of both of your witnesses, with them watching you do it, sign in the signature field that has your name.
9. Pass the will over to your witnesses.
10. In front of you, on the same last page, watch each of them sign in a witness signature field and print their personal information in the "Name", "Address", and "Occupation" fields that are under their signature.
11. On all pages before the last, initial in the space for your initials in the bottom right corner, and have your witnesses initial in the spaces for them. Such initialing on every page before the last is not legally required but is a universal standard.

To see more from our instruction manuals click here.