The Wills and Succession Act ("WSA") came
into force in Alberta on February 1, 2012. The WSA repeals and
replaces signifi cant portions of the legislation that governed
wills and succession in Alberta. Some of the changes introduced by
the WSA include:
Divorce (or the termination of an adult interdependent
relationship) revokes a gift in a Will made to a former spouse or
adult interdependent partner and revokes the appointment of a
former spouse or partner as executor of the Will. The gift or
appointment will not be revoked if a contrary intention is
expressed in the Will. Under the WSA, marriage, or the entering
into of an adult interdependent partner agreement, will not revoke
a Will, as was previously the case.
When two people die in circumstances where it is not possible
to determine the order of death, each person will be deemed to have
predeceased the other.
Previously, when a Will did not comply with certain formalities
set out in the legislation (for example, it was not properly signed
or witnessed) the Will as a whole or certain gifts in the Will,
depending on the circumstances, was deemed to be invalid. However,
under the WSA, the Court can validate a non-compliant Will and
validate an otherwise void gift, where the Court is satisfi ed that
to do so would be in accordance with the intention of the testator.
(Similar legislation exists in other Canadian provinces, but this
is new law in Alberta.)
Under the WSA, the Court can rectify errors and omissions in
Wills, and the Court has the power to add or delete characters,
words or provisions in Wills. While the Court has long had the
power to delete portions of Wills resulting from
"mistakes," the ability to make additions to Wills in
circumstances of error is new law in Alberta.
Under the WSA, it is possible to bring an application alleging
that a transfer by a deceased person during his or her lifetime to
a benefi ciary under a Will (or on an intestacy, where a person
dies without a Will) was intended as an advance against the share
of the estate the benefi ciary is to receive under a Will or on an
The Dependants' Relief Act permitted
"dependants" of a deceased to make a claim for
"proper maintenance and support." Spouses, adult
interdependent partners, minor children and adult children of a
deceased who by reason of physical or mental infi rmity were unable
to earn a livelihood qualify as "dependants" and could
bring a claim against an estate for maintenance and support in
appropriate circumstances. The WSA repeals and replaces the
Dependants' Relief Act. While the substance of the law
in this area largely remains the same, the WSA introduces a few
signifi cant changes. The WSA will replace the term
"dependant" with the term "family member" and
expands the class to include a) adult children under 22 who are
full-time students and b) grandchildren or great- grandchildren of
a deceased in respect of whom the deceased stood in the place of a
parent, as new categories of persons who may bring a claim against
an estate for maintenance and support. In addition, the WSA grants
a surviving spouse or adult interdependent partner a temporary
right of possession to the family home for three months after the
death of a deceased spouse or partner, if the surviving spouse or
partner does not already own the home.
One of the most signifi cant changes proposed by the WSA
concerned the division of matrimonial property on death. The
Government of Alberta previously proposed amendments to the
Matrimonial Property Act ("MPA") that would
permit a surviving spouse to commence an action for a division of
matrimonial property following the death of his or her spouse, in
the same manner as a spouse could do on the termination of a
marriage. However, the Government of Alberta recently advised that
the proposed amendments to the MPA would not come into force on
February 1, as the Government intends to further consider these
The foregoing is only a brief summary of some of the changes to
the law effective February 1, 2012. The changes to the legislation
will have a signifi cant impact on Will and estate planning for
Albertans, and the administration of the estates of deceased
Albertans. Our Wills, Trusts and Estates department have expertise
in this area and can assist if you wish to determine if the
legislative changes impact your particular situation, or discuss
preparing an estate plan that implements your intentions and
contemplates your specifi c circumstances.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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