In a world where Artificial Intelligence, "DIY" will-kits, and general access to the Internet is at the tips of almost everyone in Canada's fingers, why would anyone ask a lawyer for help preparing their will? It is, after-all, a seemingly easy document where a person appoints an executor and disposes of their property. Simple, right?
Wrong.
So, what could go wrong?
To start with, wills in Alberta are governed by the Wills and Succession Act (the "WSA"). The WSA sets out strict formalities for a valid will. To be valid, a will must:
- be made in writing,
- contain the signature of the person making the will (the "Testator"), and
- be made in compliance with the rules of the WSA.1
For a "formal will," the will must be signed by the Testator, and witnessed by two other people in the Testator's presence.2 And don't forget there are rules for who can be a proper witness.3
In Alberta, for a valid "holograph will" (a handwritten will), only the Testator needs to sign the will. However, the holograph will needs to be in the Testator's own handwriting.4 No typing, no other people and no witnesses are required. A third type of will, a "military will" has its own requirements.5
While some careful googling could lead someone to follow the correct requirements for a will, these are not the only issues. What if the will doesn't appoint an executor? What happens if the will doesn't address all of the Testator's property? What happens if there is more than one will laying around?
Additionally, there are certain obligations to family members that need to be considered, as well as planning surrounding taxes, the location of assets, and trusts for minors. A lawyer can help navigate these issues and provide the necessary advice before a will is drafted.
What happens if you discover a will made out incorrectly?
The good news is that the WSA sets out two main processes for fixing a will that is not in compliance with the requirements of the WSA:
- The first process is called validation, and a Court may order that a writing is a valid will in accordance with the WSA if the Court is satisfied it is meant to be the Testator's last will and it sets out their testamentary intentions.6
- The second process is called rectification, and a Court may "rectify" a will that does not reflect the Testator's intentions due to an accident or omission of the Testator, or a misunderstanding of the person who prepared the will. This rectification procedure can apply to fixing a missing signature.7
The bad news, however, is that fixing a non-compliant will involves a Court application. Court applications move slowly, can be very expensive, and may be contentious. The general rule for costs to be paid in Alberta is that the losing party usually pays the costs, unless the litigation was reasonably necessary or caused by the conduct of the deceased or others. An award of solicitor-client costs, which requires the unsuccessful party to pay all of the costs of the successful party is very rare and only awarded in exceptional circumstances or where previously agreed to pursuant to a contract. In most cases, the Court will award party-party costs, which only covers a portion of the successful party's costs. If the litigation is caused because the deceased prepared a will that was not valid or was required to be rectified, this cost depletes the funds available for the beneficiaries and significantly draws out the process of administering someone's estate.
Pitfalls of DIY wills: A cautionary example
A recent case, Smith Estate (Re), 2025 ABKB 4, deals with the exact question of non-compliant wills. In June 2022, the testator passed away quite suddenly at the age of 68, leaving behind a series of 10 different documents purporting to be wills.
First, there was a 1993 will prepared by a lawyer. Then, between 2015 and 2022, there were nine other purported wills prepared by the testator and his business associate/friend. The nine purported wills all had various issues – some were not witnessed correctly, some were not signed at all, and some included handwritten changes.
There was no question the 1993 will was valid – however, between 1993 and his death in 2022, a lot had changed for the testator. He had gotten divorced, become estranged from one of his adopted daughters, and allegedly had a new fiancée. The question before the court was whether any of the potential wills could be validated or rectified and which one should be admitted to probate as the testator's final testamentary wishes.
The Court was ultimately able to validate the first five purported wills with each one revoking the previous one and validated despite the absence of a second witness. The remaining sixth through ninth purported wills were held not to constitute valid wills. The Court held the September 6, 2016 purported will to be valid and it revoked the 1993 will and all previous purported wills. None of the remaining four purported wills, ranging from 2016 to 2022 could be saved.
Pay now or pay later: Estate planning costs vs. litigation costs
Investing in proper estate planning may seem costly upfront, but the price of litigation due to poorly drafted or disputed wills can far exceed the initial savings.
Our Estates and Trusts Litigation team, as well as our Private Client Services team at Miller Thomson LLP, are here to guide you through the process of having a properly prepared estate plan, or walk you through the litigation process if the validity of a will is in question. Contact Miller Thomson LLP today for a consultation regarding your estate needs, and help make things easier for you or your future beneficiaries.
Footnotes
1. Wills and Succession Act, SA 2010, c W-12.2, s 14.
2. Ibid, s 15.
3. Ibid, s 20.
4. Ibid, s 16.
5. Ibid, s 17.
6. Ibid, s 37.
7. Ibid, s 39.
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.
