On February 1, 2012, the new Wills and Succession Act
("WSA") came into force, consolidating succession
legislation in Alberta. The legislation – as originally
unveiled - included significant amendments to portions of the
Matrimonial Property Act ("MPA"): allowing a
surviving spouse to make a claim for matrimonial property upon the
death of a spouse, irrespective of whether or not there was a
marital breakdown prior to death. However, amidst a firestorm of
criticism, the matrimonial property amendments were not proclaimed
into force on February 1, 2012. The Alberta Government has now
confirmed that the matrimonial property amendments will not be
proclaimed in force at this time, but that the proposed amendments
will be reviewed further.
So, what does this mean for married Albertans? What rights
does the surviving spouse have to matrimonial property on the death
of a spouse?
The controversial amendments would have allowed a surviving
spouse to claim his or her share of matrimonial property in
addition to his or her entitlement under a Will or on
intestacy (where there is no Will). The proposed changes
attempted to address the concern that a happily married surviving
spouse has less right to an equitable distribution of matrimonial
property on the death of his or her spouse, than he or she would
have on a breakdown of the marriage.
Many were concerned that the proposed amendments would allow
surviving spouses to "double dip," which could create
surprising and unintended results for many Albertans. A surviving
spouse could make a matrimonial property claim, accept any property
that is awarded to him or her in the matrimonial property order,
and also take his or her distribution under the Will or on
intestacy. This could result in a surviving spouse's
entitlement exhausting the assets of an estate, thereby excluding a
testator's other intended beneficiaries, such as children from
a prior relationship, common law partners, and charitable
beneficiaries. It could also thwart a testator's estate plan in
respect of a family business or family farm operation where the
business operation was intended to be passed along to the next
Others felt that allowing a surviving spouse to make a
matrimonial property claim was inherently fair: a testator cannot
give away what he or she does not own, and matrimonial property is
property that is shared by the surviving and deceased
The current law
A surviving spouse can only make a claim for division of
matrimonial property on death if such a claim could have been
initiated prior to death: that is, if there was a breakdown of the
marriage prior to death. Also, even where the circumstances
allow the Court to make a matrimonial property order, the Court, in
making the Order, is directed to take into
consideration any benefit received by the surviving spouse as a
result of the death of the deceased spouse. However, a surviving
spouse is still able to advance a claim for a greater share of a
deceased spouse's estate by claiming family maintenance and
support under Part 5 of the Wills and Succession Act
(previously known as dependants' relief in Alberta), and by
making other common law claims in certain circumstances. Of course,
where a testator leaves all of his or her estate to a surviving
spouse in a Will, the matrimonial property provisions will be of
little or no concern to a surviving spouse in any event.
It is expected that Alberta will enact legislation to deal with
this issue at some future date. However, at this stage, it is not
certain how the legislation will change or when any changes may
come into force. Until then, it is recommended that all
Albertans prepare a Will which gives effect to their wishes with
the assistance of a lawyer who understands how their wishes may be
impacted by current legislation, and that any estate planning is
undertaken with a view to revisiting that planning if and when
legislative changes are brought into force.
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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In McNeill Estate (Re), 2016 ABQB 645, the court used extrinsic evidence–evidence outside the Will itself–to validate a Will even though only a photocopy was available and it was witnessed by only one person, not two.
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