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Get answers to your questions about Wills

What is a Will?

A Will is a document that gives instructions about what happens to your property after you die. You can also leave funeral and burial instructions and appoint guardians for your minor children.

Who makes the decisions?

The person you appoint as your Executor makes the decisions. You can have one or more Executor and you can have alternate appointments. If you choose more than one Executor, the Executors must make all decisions unanimously, unless you include a tie-breaking or dispute resolution provision.

What if I don't make a Will?

If you have no Will, the Wills and Succession Act sets out who will get your property after you die. The Act has a scheme of distributing the property amongst your family. You have no say about which relatives get what, or about how much each gets. Similarly, if you leave something out of your Will, the same Act will apply to the property not included in your Will.

If you have a Will but do not appoint an Executor in it, the court appoints an Administrator with Will Annexed. In this situation, the Administrator acts like an Executor and carries out the instructions in your Will.

What decisions does the Executor make?

The Executor can only make decisions that are consistent with the instructions you leave. However, it is usual to give the Executor some areas of discretion to decide certain things. If you say nothing, the Executor decides whether, for example, to bury or cremate you, or to sell or give away your furniture and personal belongings.

Can I control the decisions?

Yes, to a great extent. The Executor must give your property to the people you choose and on any conditions you set. The more detailed you are about what is to happen to your property, the less room there is for the Executor to make decisions that may be contrary to your intentions

Can anyone pressure me into making a Will or into changing my Will?

No. In order for your Will to be valid, it must be signed by you voluntarily and it must reflect your true intentions. You are allowed to discuss the contents of your Will with anyone, including the people you name as beneficiaries under your Will. However, the final decision about who to name as Executor or how to distribute your property must be made by you, voluntarily.

Are the appointments and instructions legally binding?

Yes, as long as the Will is in writing.  In Alberta, a Will that is entirely in your handwriting (holograph Will) is valid without witnesses.  If the Will is in someone else's writing or typewritten, there must be two witnesses and certain formalities about signing it must be observed for the Will to be valid.

Must I be competent (mentally capable) to do this?

Yes. Once you have become incompetent, you cannot make a Will. A Will is written before you become incompetent continues to be valid. To be competent to make a Will, you must understand the nature and the effect of making a Will. That is, you must understand that your Will disposes of your property; you must understand the nature and extent of your property; and finally, you must understand whether there are any persons to whom you might have obligations or for whom you might be expected to provide in your Will your spouse or your children, for example).

When does a Will take effect?

A Will takes place immediately upon your death.

Does anyone check on the person I appoint?

Not specifically, so the person you appoint as Executor must be someone you trust, and someone who will make good financial decisions.   Beneficiaries can generally be relied on to see that everything is done properly in the administration of your estate and the Court has a supervisory power over the administration of estates.

Where Should I Keep Copies of My Will?

Your original Will should be stored in a place where it is safe , but can be easily found if necessary.  Many people give copies to their Executors and their next of kin.  Copies may also be given to financial advisors, lawyers, friends or anyone who might have an interest in your Estate.