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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss the requirements for making a will valid.
A will is a legal document that says how your property is to be distributed after your death. You should consult with a lawyer to ensure that your will is legal and it complies with all the formalities under the Wills Act. There are strict legal requirements under the Wills Act for a will to be valid. If your will does not comply with the requirements of the Act, the Court may declare your will invalid when it is probated. Your property will then be distributed according to any previous will you made that was valid. If you die without a will, the Intestate Succession Act will determine how your property is to be divided.
To make a will, you must be over 18 years of age and mentally competent. If you are under 18 years, you can make a will only under some circumstances. For example, you must be married, be a member of the armed forces or be a seaman. If you are under 18 years of age and have children but are not married, you can make a will if your children are your only beneficiaries.
A will must be properly witnessed to be valid. All signatures in the will must be witnessed by at least two (2) other people. Your signature as testator (one who makes the will) of the will must be made in the presence of the two witnesses. Each witness must make their signature in the presence of both you and the other witness. The witnesses do not need to know the contents of the will before they sign. Do not let beneficiary or a spouse of a beneficiary witness your will. Otherwise a gift made to that beneficiary cannot pass. Ask people who have no interest in your property to act as witnesses.
The signatures of both you and your witnesses must be made at the end of the will. The Wills Act does not require you or your witnesses to sign on each and every page of the will. However, if your will is written on more than 1 sheet of paper, the Court may require some identification of the pages as part of the will that are not signed. It is advisable for you and your witnesses to place your initials on each page of the will.
You can make a valid will without certain formalities required under the Wills Act if you make the will entirely in your own handwriting. For example, you would not require any witnesses to your will. A will written entirely in your own handwriting is called a Holograph Will. Your holograph will is valid only if the entire document is in your own handwriting. You do not need to use legal terms as long as you clearly state that the document is intended to be your last will. You must sign and date this will at the bottom.
You are strongly advised against using a will package purchased from a stationary store where you only fill in the blanks on preprinted forms. These forms may be used as a guide to prepare a will, but you should rewrite everything in your handwriting to make it a valid holograph will. If you only fill in the blanks on the form, then the will must follow the strict formalities under the Wills Act.
Your will is cancelled or revoked if:
- You get married after you make your will unless the will is made in contemplation of that marriage;
- You make a written statement declaring an intention to revoke the Will and it is made in accordance to the Wills Act;
- You intentionally destroy it;
- You make a new will in accordance to the Wills Act.
Always make a new will if there is a major change of circumstances in your life. Your will is only revoked when you marry someone after making a will and not when you separate or divorce. If you wish to make only minor amendments to your will, you can make a “codicil” or an addition to a will. The codicil must be signed and witnessed in the same way that you originally signed the will.