Why wills are changed
People may decide to change their wills for many reasons, including getting married or divorced, having children, or a fallout with a sibling or other family member.
Minor changes to a will can be made using a simple document called a codicil. Major changes may require that a new one will be prepared.
Basic legal requirements for a valid will
The formal requirements for a will (or codicil) are fairly simple:
- It must be signed by the testator (the person making the will) in the presence of two witnesses, who should also sign in the testator's presence.
- Alternatively, the will can be written entirely in the testator's own handwriting and signed by them without a witness (sometimes called a holograph will).
- Beneficiaries should not be witnesses, as their gift in the will may be voided.
Court discretion under the Wills and Succession Act
But the court has the authority under the Alberta Wills and Succession Act to declare that a will or codicil is valid despite the absence of formalities, if it is satisfied "on clear and convincing evidence" that the document genuinely sets out the testator's intentions.
The court can also rectify the failure to sign a will in certain circumstances, including where there is clear evidence that the testator intended to sign the document and make it effective.
What could count as a valid will?
This leaves open the possibility that a document drafted on a computer, but not printed or signed by the deceased, a video or audio file recorded by phone, or even an email to a family member, could be found to constitute a valid will, if it is shown to be sufficiently clear and authentic, and representative of the testator's fixed and final intent.
In fact, there have been many cases in Canada where non-compliant documents, such as memos made on sticky notes and notes made on a McDonald's napkin, have been found to be valid wills.
Some jurisdictions in the United States and elsewhere have enacted legislation expressly allowing for email or electronic wills.
Why a formal will is still best
However, we do not recommend that testators leave the final disposition of their assets in such an uncertain state.
Resolving these issues after the testator's death can be costly, time-consuming, and stressful for everyone involved. Having a will properly drafted by a lawyer, independently witnessed, and properly documented at the lawyer's office remains the best way to ensure that the testator's wishes will be upheld.
Best practices to avoid challenges
In addition, to avoid potential challenges by actual or aspiring beneficiaries, there are best practices that are not strictly required by law.
- If there are concerns that there could be a challenge to the testator's mental capacity due to their age or medical condition, you may want to consider having evidence of capacity, such as a sworn statement from a witness, or a letter or statement from a doctor or other medical professional, confirming capacity.
- Providing a memo in the "will file" setting out the reasons that the testator is giving specific gifts to certain people or charities will also help protect the will from scrutiny.
- If it is expected that there may be accusations of undue influence by a caregiver, family member, or other beneficiary, it would be prudent to have the testator sign an affidavit or other document explaining the reasons for their choices.
Originally published by Digital Journal, 7 June 2025
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.
