Will Woes: Avoiding Common Drafting Problems

 

 

 

In order for a Will to be valid in Alberta or Saskatchewan, it must be in writing and be signed by the person making the Will, who is called the Testator (a female Testator is referred to as a Testatrix, though it is increasingly common to refer to both a male or female as a Testator).

There are two types of Wills that are legally recognized – a holograph Will and a formal Will. A holograph Will must be written entirely in the Testator’s own handwriting and is signed by the Testator without a witness or any other formalities. Any Will that does not meet the requirements of a holograph Will is considered a formal Will. To be valid, a formal Will must be in writing (they are typically typed) and be signed by the Testator in the presence of two or more witnesses. The witnesses must also sign the Will in the presence of the Testator, and it must be apparent that the Testator intended to give effect to the Will by signing it.

Will kits containing typed clauses with blank spaces for Testators to fill in can pose problems with regard to the above requirements. First, this type of Will cannot be considered a holograph Will, even if the Testator fills in the blanks in his or her handwriting. Second, many people write and sign Wills from Will Kits without having witnesses present, which does not meet the requirements for a formal Will. Another common problem is having a beneficiary act as a witness, which will void the gift to this beneficiary. Estate planning today also includes consideration of tax issues, guardianship and trust creation for dependants, as well as additional family law considerations for blended families. In most, if not all cases, it is advisable to consult with a lawyer when preparing a Will, as the lawyer will be able to explain how to properly draft and execute the document.

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