When people are creating their wills in Alberta, they have many questions about the process. At Verhaeghe Law, our team is commonly asked: “What makes a will valid?” This is an important question, as a valid will is integral for helping you provide for your loved ones after you’re gone. Unfortunately, with the rise of will kits and other DIY options, invalid wills are more prevalent than ever.
Alberta has strict legal requirements for wills to be recognized in court. By understanding what’s necessary for a will to be valid and the consequences of passing away with an invalid will, you can help protect yourself and your family.
At Verhaeghe Law, our Edmonton wills and estates lawyers are dedicated to helping clients create wills tailored to their financial and personal needs. Whether you’re creating your first will or you need to update your will to reflect a new situation, we can help. To discuss your legal options, schedule a consultation today.
Requirements for a Valid Will in Alberta
There are multiple components that a will must contain in Alberta to be considered legally valid. These are governed by the Wills and Succession Act. By working with an experienced wills and estates lawyer, you can ensure that the estate plan you create will hold up after you pass.
Requirements that must be met include:
- Eligibility: The creator of the will (testator) must be over 18 and mentally competent at the time of its creation. There are small exceptions made for underage individuals under special circumstances.
- Signatures & Witnesses: For a will to be valid, it must be signed by the testator in the presence of two witnesses. These two witnesses must also sign the will in each other’s and the testator’s presence. Witnesses should not be beneficiaries named in the will or spouses of beneficiaries.
- Language & Execution: For courts to consider a will valid, it must contain proper gifting language and be executed correctly. For example, a testator and witnesses may not need to sign every page of a multi-page will, but may need to initial pages. In addition, it must be clear that the will you have created is intended as a last will. An estate lawyer will make sure these requirements are met before your will is finalized.
- Self-Proving Will: In order for a will to be probated, it must contain a self-proving affidavit (witness affidavit). This is an affidavit that a witness signs to swear that they observed the will being signed. Without it, the validity of a will may be challenged.
- Required & Prohibited Provisions: Some elements must be included in a will for it to be valid. For example, a will must properly distribute your estate’s assets. There are other elements that you are forbidden from including in your will lest it become invalid. For example, requiring a beneficiary to do anything illegal.
It’s important to note that a will may also become invalid after its initial creation. If you get married without providing for the marriage in your will, it may result in your will being revoked. In addition, making a new will, intentionally destroying your will, or submitting a written revocation of your will may also result in it becoming invalid.
What Happens if Your Will is Invalid?
Because of the stringent requirements outlined by the Wills and Succession Act, wills can be challenged after the testator passes. Family members or other involved parties may challenge the validity of a will if they believe:
- The testator lacked capacity at the time of signing
- Undue influence was exerted over the testator during the will’s creation
- Forgery occurred
- There is ambiguous language in the document
- Improper witnessing took place
- And more
If a challenge is successful or a court rules that a will is invalid, intestacy laws will apply. Intestacy laws also apply when no will exists in the first place. Under intestate succession, the government decides how your assets are divided once you pass. Not only might this mean that your wishes are not reflected properly, but it can also cause:
- Delays in asset distribution
- Family disputes and legal costs
- Assets going to unintended beneficiaries or default heirs under legislation
Ensure Your Will is Valid and Enforceable – Speak With Our Wills & Estates Lawyers Today
There are many factors that go into making a will valid. Even the smallest mistake can result in major legal consequences for your family. When your will is invalidated, there can be a loss of control, conflict, and court delays.
At Verhaeghe Law, our Edmonton wills and estates lawyers can help you draft, review, or update your will to ensure it meets all legal requirements in Alberta. Contact us today to protect your legacy with confidence.