The Importance Of A Power Of Attorney And Personal Directive

The Importance Of A Power Of Attorney And Personal Directive

You may be aware that you should prepare a will in order to protect your family from uncertainty upon your death. But do you know that an enduring power of attorney and a personal directive are equally important?

Our Edmonton estate lawyers can help you to protect your family and will fully explain the importance of a power of attorney and personal directive, contact our team today.

Enduring Power Of Attorney

The enduring power of attorney grants a specific person the authority to make financial decisions for you. You can decide when it comes into effect (either immediately or if/when you lose capacity). Capacity, or mental capacity, means the ability to understand what property and financial obligations you have, what authority you have given to your attorney and the risks involved.

If you want your power of attorney to come into effect when you lose capacity, you must indicate who can make a written declaration that you have lost capacity (for example, your family physician). If you neglect to include such a statement, it will be necessary for your attorney to obtain written declarations from two different doctors in order to prove that you have lost capacity.

Once your power of attorney comes into effect, it continues until:

  • either you or your attorney die (you can name an alternate attorney, who can take over in the event your attorney can no longer continue to act)
  • you revoke it
  • the court cancels it or makes an order for trusteeship.

The power of attorney gives your attorney the ability to do your day-to-day banking and pay your bills. Depending on what financial interests you have, your attorney may also need to be responsible for:

  • dealing with real estate interests
  • filing tax returns and making tax-related decisions
  • dealing with a business (either keeping it running, selling it or winding it up)
  • using your financial assets to support you and your family
  • hiring and getting advice from lawyers, accountants or other professionals as necessary.

When choosing an attorney, keep in mind the extent of the job you are giving them and try to determine whether they have the time and the ability to do it well.

Personal Directive

A personal directive is similar to a power of attorney, but instead of financial matters, it covers personal matters. Your personal directive gives a specific person, known as your agent, the ability to make personal decisions for you in the event that you become unable to make them yourself. Personal decisions may include:

  • where you live
  • medical treatments and personal care that you receive
  • who cares for your minor children
  • other choices about what you do on a daily basis.

If you like, you can include specific instructions for your agent about what you would or would not wish to happen in specific circumstances, but it is not necessary.

What Happens If You Do Not Have A Power Of Attorney Or Personal Directive?

If you don’t have a power of attorney or personal directive and you lose capacity due to an illness or accident, your family may need to apply to the court to have them assign:

  • a trustee to make financial decisions, and
  • a guardian to make personal decisions.

Court applications cost money and can take time, and your family might be in a bad financial situation if they don’t have access to sufficient funds to meet all of your ongoing obligations. If you need emergency medical treatment, the hospital may ask a relative to make those decisions on your behalf and they may not ask the person you would have picked to be your agent.

Contact Verhaeghe Law Office’s Edmonton Estate Lawyers Today For Legal Advice On Estate Administration in Alberta

Verhaeghe Law Office’s team of estate lawyers are prepared to assist you with your estate administration legal matters. Book a consultation with our team of Edmonton estate lawyers today. Or give us a call by dialling (587) 410-2500.

*Disclaimer: Please note that this article provides a general overview of the legal topic, and is not intended to constitute legal advice. For legal assistance with estate administration matters, please consult an Edmonton estate lawyer.

The Differences Between A Guardian And A Trustee In Alberta

5 Benefits Of A Prenuptial Agreement

Whether due to illness or injury, it is not uncommon to have a family member who becomes incapable of making all of their own decisions. This can range from needing a little bit of help making sure they remember to pay their bills, to requiring someone to decide when to sell their home and move them into a care facility.

The person’s needs will dictate whether they need a guardian, a trustee or both. Our Edmonton estate lawyers can answer any questions you have regarding the differences between a guardian and a trustee in Alberta.

What Is A Guardian?

The term guardian can refer to an adult who has the care of a minor child. An adult guardianship, however, is when an adult has the authority to make personal decisions for another adult who lacks the capacity to make those decisions for themselves.

What Is A Trustee?

A trustee is a person who has been assigned to make financial decisions for an adult who lacks the capacity to make their own decisions. A trustee is often a friend or relative of the vulnerable person, but a trust company or the public trustee may be assigned if there is no friend or relative willing to take on the task, or if the person’s financial situation is particularly complicated.

How Are Guardians And Trustees Assigned?

A court must assign either a guardian or a trustee. Sometimes a person will require both and the court can assign a different person to each role, or one person to perform both functions.

In order to apply to the court for a trusteeship order, a capacity assessment must be completed by a specified healthcare professional. The court will also want to see a background check on any proposed trustees. The entire process of obtaining a trusteeship or guardianship order takes about six months.

If there is an urgent financial matter that needs to be dealt with, the Office of the Public Guardian and Trustee may be able to help by obtaining a temporary trusteeship or guardianship on a short-term basis or an order to deal with a specific problem.

What Are The Powers Of Guardians And Trustees?

A guardian can only make personal decisions for the person in question. They can make decisions about where the person will live, who they will interact with, and make decisions related to healthcare, education and recreation.

A trustee can only make decisions about a person’s finances. They can help pay bills, manage investments and apply for pension or disability benefits on the person’s behalf. The trustee must have express permission from the court in order to sell the person’s home or any other real estate.

What Is A Review Of A Guardianship Or Trusteeship?

A trusteeship can be reviewed by the court. This can be done at the request of the trustee or a concerned party. A trusteeship order may come with a predetermined review date or a deadline for examination and approval of the trusteeship accounts, which means that the court wants the opportunity to examine the records that the trustee has been keeping to make sure they are doing a good job.

An adult guardianship can also be reviewed. A review date may be built into the guardianship order or a review may become necessary if the adult under guardianship has a change in capacity (requiring more or less support) or their needs change for some other reason.

Can You Avoid The Need To Have A Guardian Or Trustee Assigned?

A person with a personal directive does not need to have an adult guardian assigned by the court. Similarly, a person with an enduring power of attorney will not need a trustee, provided the enduring power of attorney does not come to an end when the person loses decision-making capacity. Our lawyers can help you distinguish the differences between a guardian and a trustee in Alberta. Contact our team today for more information.

Contact Verhaeghe Law Office’s Edmonton Estate Lawyers Today For Legal Advice On Estate Administration in Alberta

If you require legal assistance from an Edmonton estate lawyer, contact our law firm to book a consultation. Our lawyers are proud to represent clients across Alberta. You can schedule a consultation today by dialling (587) 410-2500.

*Disclaimer: Please note that this article is intended to act as a general overview of a legal topic, and is not intended to constitute legal advice. For legal assistance with estate matters, please consult an Edmonton estate lawyer.

5 Ways To Avoid Estate Litigation Down The Road

5 Ways To Avoid Estate Litigation Down the Road

You know that you need a will in order to protect your family. But, even with a will, estate litigation has the potential to quickly eat through whatever legacy you plan to leave your family. Once you are gone, you no longer have control over your estate, but there are ways to mitigate the risks. Talk to one of our Edmonton estate lawyers to learn how to protect your family, book a consultation today. Here are 5 ways to avoid estate litigation down the road in Alberta:

1. Talk To Your Family About Your Wishes

Telling your family members how you want your estate dealt with when you die can avoid many problems. Communication can help to manage everyone’s expectations. If no one is surprised or disappointed when it is time to divide your property, then litigation is less likely to occur.

It is also a good idea to tell your family who you want to be the executor of your estate. That way, if the person you want to name doesn’t intend to accept the responsibility, they can tell you ahead of time, avoiding any need for the court to assign someone else.

2. Consider Making Any Potentially Controversial Gifts During Your Lifetime

In a situation where you have spoken to your family about your intentions for your estate and they have voiced an objection to a specific gift you intend to make, there are ways to ensure that you can still distribute your estate as you want while avoiding litigation down the road. An obvious way would be to gift the item or funds to the recipient immediately, during your lifetime. Just make sure that the gift is documented in some way, so that no one else can make any claims against the gift later.

If making the gift during your lifetime is not possible or practical, there may be other legal instruments, such as a trust, that will achieve your particular objectives. Speak to your Edmonton estate lawyer about your options.

3. Understand Your Legal Obligations To Your Family

One of the most common objections to property division in a will is that it fails to meet the testator’s obligations to family members. This may be of particular concern if you have been married more than once, currently pay spousal support or child support, or have children who are still considered dependent on you. If you fail to adequately provide for a dependent family member in your will, the court can make an order for their adequate support and maintenance from your estate.

Your estate lawyer will ensure that you meet all of the obligations to family members set out in the Wills and Succession Act.

4. Leave Specific Instructions For Dealing With Sentimental Or Personal Items

Conflict between family members can be avoided by including in your will a mechanism for distributing personal property or by gifting specific items to specific family members. If you’re not sure whether there is a specific item that might cause conflict after you are gone, ask your family what items they specifically want.

5. Have A Lawyer Prepare Your Will

The best way to avoid estate litigation is to have an Edmonton estate lawyer prepare your will and ensure that you update it periodically. Your lawyer will help you avoid all the pitfalls mentioned here and more.

Contact Verhaeghe Law Office’s Edmonton Estate Lawyers Today For Legal Advice

Our Edmonton estate lawyers are prepared to assist you with estate matters. Contact us today to learn more about wills and estates and how your family could be impacted. Book a consultation or give us a call today by dialling (587) 410-2500.

*Disclaimer: Please note that this article is not intended to act as legal advice; it merely provides a general overview of the legal topic. For advice regarding your legal matter, please consult with an Edmonton estate lawyer.

5 Benefits Of A Prenuptial Agreement

5 Benefits Of A Prenuptial Agreement

A prenuptial agreement is written by two people in contemplation of their marriage and can govern:

  • how they will deal with their family finances during their relationship
  • how their property will be distributed at the end of the relationship (in the event of a separation or upon the death of one spouse)
  • spousal and child support in the event of a separation.

A prenuptial agreement cannot deal with issues of child guardianship or parenting responsibilities.

The best time to negotiate a contract relating to your relationship is when your relationship is in a good place, which makes a prenuptial agreement an excellent option. Our family lawyers are ready to help you determine if a prenuptial agreement is right for you, book a consultation today.

Here Are 5 Benefits To A Prenuptial Agreement:

1. Protect Your Business

A divorce or separation can have a devastating impact on a business owned by one of the spouses, if you are not prepared. A prenuptial agreement can be used to ensure that your business is not financially impacted by a divorce.

2. Protect Your Children From A Previous Relationship

If you were previously married, you may have spousal or child support obligations that must be accounted for both during your new marriage and after it ends. You may have specific assets that you want to preserve for a child from your first marriage. You definitely want to ensure that your property is divided according to your wishes upon your death and that all of your dependents are provided for. A prenuptial agreement can help to accomplish all of that.

3. Protect Yourself And Your Spouse

A prenuptial agreement can protect both spouses, particularly when there is a significant disparity between their financial situations. Many people assume that a prenuptial agreement is used to protect the spouse with the most property from having to share those assets in the event of a divorce, but it can be used to protect both spouses by:

  • providing an allowance for the spouse with the weaker financial situation during the relationship
  • stipulate that the parties will divide their financial obligations in such a way that enables the spouse with the weaker financial situation to save for their future
  • providing for a fair division of assets in the event of a separation
  • providing for spousal support for the spouse with the weaker financial situation in the event of a separation.

4. Give Both Spouses The Security To Leave A Marriage If They Want Or Need To

By taking away the financial uncertainty typical of the end of a relationship, you give both yourself and your spouse the freedom and security to end the marriage in the event that it goes bad. Staying in a marriage that is no longer functioning for strictly financial reasons can be harmful to the mental health of everyone involved, in particular any children that you might have. A prenuptial agreement can give you and your spouse the ability to make the best decision for your family at the time, without basing that decision on finances.

5. Avoid Many Of The Potential Financial And Emotional Impacts Of Divorce

Deciding to get a divorce can be a huge risk, both financially and emotionally. A prenuptial agreement can be used to mitigate many of these risks by avoiding financially draining legal fees associated with litigation or protracted negotiation at the end of a relationship, when feelings are high.

Contact Verhaeghe Law Office’s Edmonton Family Lawyers Today For Legal Advice

For more information regarding the benefits of a prenuptial agreement, contact our Edmonton family law team. Book a consultation, or give us a call by dialling (587) 410-2500.

*Disclaimer: Important to note that this article merely provides a general overview of the legal topic, and is not intended to constitute legal advice. For legal assistance with family law matters, please consult an Edmonton family lawyer.

How to navigate a divorce when you own a business with your spouse

How to navigate a divorce when you own a business with your spouse

Owning a business with your spouse can add a layer of complication to any divorce. How you navigate such a divorce will depend on several factors, including:

  • whether you started the business together during the relationship or whether one spouse brought the business with them to the marriage
  • whether the business is a corporation or a partnership
  • what you plan to do with the business following the divorce.

Our Edmonton family law lawyers can answer whatever questions you might have about navigating a divorce when you own a business with your spouse.

How a business is treated during a divorce

A business is an asset. When spouses divorce, they divide equally:

  • the value of any assets and debts they acquired during the relationship
  • the increase in value of any assets that they brought with them to the relationship
  • the value of the family home.

Unless you intend to sell the business to a third party and divide the proceeds with your spouse, you will likely need to have the business valued. There are many different methods used for valuing a business. A professional business valuator will know which method to use in your case and what documents they will need to give you an accurate picture of the value of your business.

Are you going to stay in business after your divorce?

In addition to being relevant to the overall division of the family assets, you and your spouse will also need to decide what to do with the business after the divorce. Depending on your circumstances and personal preferences, you may decide to:

  • wind up the business
  • sell the business to a third party
  • sell your share of the business to your spouse so that your spouse can continue to run the business
  • buy your spouse’s share of the business so you can continue to run the business
  • continue to run the business with your spouse.

Each option is likely to yield different benefits and have different tax consequences. If you and your spouse intend to continue to work together to run the business, you may consider preparing an agreement that details how you intend that to work and what you will do if you need to put an end to your business partnership.

Winding up a business and selling its assets generally has different tax consequences when compared to selling a business as a going concern. There are many factors to consider when deciding what to do with the business after your divorce and you might find that some of the above options are not available to you.

Partnership or corporation?

If you and your spouse run a business together, you may be considered partners in a partnership or you may each own shares in a corporation. How the business is structured will have an effect on:

  • how the business is valued by a business valuator
  • the procedures for winding up or selling the business
  • the tax consequences related to any transactions.

It is also possible that either you or your spouse owns a business and the other spouse simply worked for the business. It will be important to determine the exact ownership structure of the business in order to properly navigate the divorce process.

Book A Consultation With Our Edmonton Divorce Lawyers Today

There are many factors to consider, so let our Edmonton divorce lawyers advise you on how to navigate a divorce when you own a business with your spouse. Contact us today!

5 things to know when buying a pre-construction house in Alberta

55 things to know when buying a pre-construction house in Alberta

There are certainly advantages to buying a pre-construction home, not the least of which is that you get a brand-new home that (hopefully) requires no repairs or updating and is covered by warranty. Many pre-construction homes can also be customized so that you end up with exactly the finishings you want.

If you are considering this path to home ownership, here are 5 things to know when buying a pre-construction house in Alberta:

1. Be sure you know what you are buying

Pre-construction homes are often bought after viewing plans or a model home, but these models often include upgrades that are not included in the base price of the home. If you are not paying for the upgraded finishes, you should look at samples of the finishes that will be included in your home before you sign an agreement.

Landscaping is often not included in the price of a pre-construction home and can be a significant additional expense. Also, keep in mind that buying in a new subdivision may mean that construction will be ongoing in your neighbourhood for years after you move in.

2. Be prepared to wait

The fact that a pre-construction home has not been built yet means that you will not be moving in anytime soon. In fact, it might be two or three years before you can move into your new home. While this might be acceptable for some, it does mean that pre-construction is not for everyone. Your circumstances might change significantly in three years, so take that into account before you sign a purchase agreement. Ask whether the agreement can be assigned to someone else if your life has moved in a different direction when the time comes to close on the deal.

3. Do your research

Builders in Alberta need to be licensed by the government in order to build new homes. You can search the registry to make sure that the builder you are dealing with is properly licensed. The registry was set up to protect Albertans from untrustworthy builders, so take advantage!

4. Consult a lawyer before you sign a purchase agreement

When you sign that agreement, it is legally binding on both you and the builder. You can be sure that the builder had their lawyers draft the agreement and that it is generally favourable to them. Before you sign, have your own real estate lawyer take a look to ensure that you know exactly what you are agreeing to.

Your lawyer will make sure you are aware of:

  • any additional fees that you are responsible for on top of the purchase price
  • your liability to pay GST (it is charged on new homes in Alberta, but you are entitled to a rebate if the home will be your principle residence)
  • what you need to do to make a claim under your new home warranty and when you need to do it.

5. Know your rights under your new home warranty

All builders of new homes in Alberta must provide new home warranty coverage. The government has mandated minimum coverage, but some builders offer additional coverage. Make sure that you understand the coverage attached to your new home and arrange for periodic inspections well in advance of any coverage expiry dates so that you can make any necessary claims.

Our Edmonton real estate lawyers are here to help with all of your pre-construction purchase needs. For legal advice and representation on your purchase , contact us today! Our Edmonton real estate lawyers will be pleased to speak with you.

5 things to be aware of as a first-time home buyer in Alberta

5 things to be aware of as a first-time home buyer in Alberta

Whether you have been saving up for a down payment for years or you have just recently decided to take the plunge into home ownership, you have likely realized that there is a surplus of educational material directed at first-time home buyers. Do you need to know it all?

Don’t worry! While there is a lot you do need to know, there are also professionals, such as our Edmonton real estate lawyers, who are available to help and make sure that your first home buying experience is a good one!

To get you started, here are 5 things to be aware of as a first-time home buyer in Alberta:

1. Mortgage Basics

The size of mortgage that you qualify for and the size of the down payment you have saved will dictate the amount you can afford to spend on a home.

In general, your ability to qualify for a mortgage is dependent on:

  • your income
  • your credit rating
  • the size of your down payment in relation to the total purchase price of the property.

Over the life of your mortgage, the amount you spend on interest is likely to be significant, so it is probably worth your while to shop around for the best interest rate available to you.

2. Canada’s Home Buyer’s Plan

The Home Buyer’s Plan allows you to withdraw up to $35,000 from your RRSP to use for a down payment on a home without triggering any income tax on the funds as long as you repay the amount you withdraw over a 15 year period. There is a minimum amount you must repay each year or risk triggering income taxes on that amount.

In order to qualify for the Home Buyer’s Plan, you must be a first-time home buyer.

3. First-time home buyer incentives and tax credits

As a first-time home buyer, there are several incentives and tax credits for which you might qualify, including:

  • the federal first-time home buyer incentive, which is a 5% (or 10% for new construction) shared equity mortgage with the Government of Canada
  • the first-time home buyer’s tax credit, which is a $5,000 non-refundable tax credit that can provide you with a total tax rebate of up to $750

4. GST rebate for new housing

If you are considering purchasing a newly built home from a builder, you may be put off by the idea of having to pay an additional 5% on top of the purchase price for GST. But as long as you intend your new home to be your primary residence, then you should be entitled to a rebate from the federal government.

Corporations and partnerships are not entitled to the GST rebate for new homes, so you must buy and register your new home in your name in order to qualify.

4. Why you need a lawyer

In Alberta, a lawyer must be involved in the purchase and sale of land. Your lawyer will:

  • make sure the transfer of land is legal and binding
  • initiate the process of registering the land in your name
  • facilitate the transfer of the down payment to the seller
  • adjust the purchase price to account for the property taxes in the year of sale.

For more information on these 5 thing to be aware of as a first-time home buyer in Alberta, contact one of our Edmonton real estate lawyers today. Please remember the content in this article is only intended to act as a general overview on a legal topic and does not constitute legal advice. For more specific legal advice please consult with a real estate lawyer today.

Tips on how to navigate child custody arrangements

Tips on how to navigate child custody arrangements

Separation and divorce can bring significant changes, particularly to families with children. As a parent, you want to proceed in a way that will enable your child to continue to grow and develop in an optimal environment. But figuring out what that means in the face of such massive disruptions can take some work.

Our divorce and family lawyers can walk you through the specifics of your family situation and offer tips on how to navigate child custody arrangements in Alberta.

Guardianship, parenting orders and contact orders

In Alberta, child custody and guardianship matters are governed by either:

Neither Act uses the term “custody” anymore. “Parenting time” is now used to describe the time a child spends in the physical custody of a parent or guardian.

Typically, if a child’s parents were in a relationship and parenting the child together, they each remain a guardian of that child after their separation unless a court makes an order indicating otherwise. If a child has two guardians and they are unable to agree with respect to any aspect of parenting the child, the court will issue a parenting order, which will allocate the rights and responsibilities of the guardians and allocate parenting time as necessary.

The court also has the ability to issue a contact order in cases where it considers it is in the best interests of the child to maintain a relationship with a non-parent (often a grandparent) and where the child’s guardian or guardians have been unwilling to ensure the relationship is preserved.

Negotiating an agreement

There are many decisions, both large and small, that need to be made on a regular basis when parenting a child. If you and your spouse are able to agree with respect to parenting matters, you should be in a good position moving forward.

Even if you and your spouse are in complete agreement with respect to the children, consider having a written agreement drawn up. Complete flexibility is bound to cause frustration eventually. It is easier to agree to a proposed change to the established parenting schedule than to renegotiate the parenting schedule from scratch on a weekly basis.

Also, remember that your life and your spouse’s life may change down the road. Your spouse may be accommodating to your schedule now, but that may change in a year or two when they have a new spouse and additional children or step-children to take into account.

You can have the terms of a written agreement made into a court order, which makes it easier for the court to enforce if necessary.

Court orders

Not all parents are able to agree with respect to what is best for their children. If necessary, you can ask the court to make an order dealing with various aspects of guardianship or parenting time.

A parenting order can specify what decisions may need to be made with respect to a child and which parent will make them. If decisions must be made together, an order may include some kind of dispute resolution process for dealing with conflicts. A parenting order can also include a schedule setting out each parent’s parenting time with the child.

Parenting orders can be changed as your child gets older and their needs change. This can be done either by agreement or by applying to the court for the necessary change.

Whatever stage your family is at in the divorce or separation process, you can contact our family lawyers for tips on how to navigate child custody arrangements.

Buying A New Home? When Do You Need To Hire A Lawyer?

Five things to consider when starting a business

Buying a home is an exciting milestone in your life. The laws and regulations regarding real estate purchases can vary provincially throughout Canada. From purchase agreements to land transfers, book a consultation with one of our real estate lawyers for assistance navigating the purchase process. The scope of services a real estate lawyer may be able to provide when purchasing a home are extensive, refer to this article as a mere overview.

Why Must You Hire A Lawyer In Alberta When Purchasing A Home?

In Alberta, you are required to hire a lawyer when purchasing a home. Other provinces may allow homes to be purchased without a lawyer however, this is not the case in Alberta. A lawyer will file with Alberta’s Land Title office to transfer the land title from the seller to the purchaser.

What Additional Services Do Real Estate Lawyers Provide To Help You Through The Process?

Real estate lawyers may be able to help you with numerous aspects of purchasing a home which may include, but are not limited to:

    1. Performing a Title Search: A title is a homeowner’s right to the property. There are several different types of titles. A real estate lawyer may perform a title search on your new home to ensure that another party does not currently have rights to the home.
    2. Review the Agreement of Purchase and Sale: A real estate lawyer may help you navigate the purchase agreement for your new home and answer questions that you may have regarding the agreement.
    3. Write the Statement of Adjustments: A real estate lawyer may write the statement of adjustments for your new home. A statement of adjustment is a document that shows the balance remaining to be paid on your home. This statement breaks down the costs that have already been paid and what still needs to be paid. The buyer and the seller will both have a separate statement of adjustments.
    4. Review the Real Property Report: A real estate lawyer may review the real property report for your new home and corresponding land purchase. This document shows the boundaries for your new home and improvement locations that have been made to your property.

A lawyer may be able to help with the complicated process of purchasing a home beyond that which is discussed in this article. For more information, contact one of our real estate lawyers.

Contact Verhaeghe Law Office’s Real Estate Lawyers for Advice on Buying a New Home.

Verhaeghe real estate lawyers have been proudly helping families purchase homes in Edmonton for decades. Contact one of our Edmonton real estate lawyers for more information on buying a new home.

*Disclaimer: Please note the content prescribed in this article is only intended to act as a general overview on a legal topic. For specific legal guidance regarding buying a home we recommend you consult with a real estate lawyer for legal advice as each situation is unique.

Can a Beneficiary Contest A Will?

Can a Beneficiary Contest a Will

A will is a set of instructions that determines what happens to a person’s estate when they are deceased. These instructions can include but are not limited to, what happens to a person’s property, naming an estate representative, and naming a guardian for dependents. Our Edmonton wills and estates lawyers are prepared to assist you with your estate planning, contact us today.

Requirements to Write a Will

Typically, in Alberta, you are required to be 18 years old and must be mentally capable in order to write a will. There are multiple requirements for a person to be mentally capable of writing a will. Individuals who are under the age of 18 may potentially draft a will if they are married/have an adult interdependent partner, is a member of Canadian forces, or have been allowed to write a will as determined by a court. A will must be handwritten and signed by the drafter of the will, called the testator.

Adult Interdependent Partner

Alberta no longer uses the term “common law” when describing a relationship. Instead, Alberta uses the term adult interdependent partner, which includes partners who have drafted an adult interdependent partnership agreement, have lived together for 3 years in an interdependent relationship, or have a child together and are in an interdependent partnership.

Types of Wills

There are several different types of wills. Some wills may be informal wills that are handwritten and do not require witnesses, whereas some wills may be formal, which do require witnesses. If you choose not to write a will, your estate will be distributed according to Alberta’s intestacy rules outlined in the Wills and Succession Act.

Beneficiary of a Will

A beneficiary is a person named in a will to receive from the testator's estate. A beneficiary can also be a person who wasn’t named in a will but will receive from the testator's estate according to Alberta’s intestacy laws.

Challenging a Will

Challenging or contesting a will requires that a court finds that the will is not valid. A will may be found not valid for numerous reasons.

  1. The deceased was not mentally capable at the time when they wrote the will. In order to be mentally capable of writing a will, you must understand what a will is and that you are writing one, understand your property, and understand those who are dependent on you for support.
  2. The testator was being influenced or pressured when they were drafting the will.
  3. The will does not provide support to dependents.
  4. The will was not carried out properly.

The reasons included in this article are examples and are not exhaustive. For more information, you can contact an estate lawyer.

Contact Verhaeghe Law Estate Lawyers for Advice on Contesting a Will in Alberta.

Verhaeghe lawyers have been proudly serving Edmonton’s communities for decades with legal matters relating to wills and estates. Contact our Edmonton estate lawyers for assistance on all your estate related legal matters.

*Disclaimer: Please note the content prescribed in this article is only intended to act as a general overview on a legal topic. For specific legal guidance regarding challenging a will, we recommend you consult with an estate lawyer for legal advice.