Can I Leave Someone Out Of My Will?

Author:Gee, Donna L.

The short answer to the question is yes, depending on the circumstances. In this article, I will be discussing the relevant parts of the Alberta legislation that pertains to the writing of Wills: the Wills and Succession Act, SA 2010, c. W-12.2 (referred to after as "the Act"). I will be addressing the following:

* Who can make a Will;

* What are the formalities for making a Will;

* Who must be provided for in a Will; and

* Who may be excluded from a Will.

For the sake of simplicity, throughout this article the word "maker" means a person making a Will and applies to both genders. Also, the term Executor (the person who is appointed by the Will to carry out the instructions of the maker) applies to both genders and includes the term "personal representative".

Who can make a Will?

Anyone who is at least 18 years of age and who has mental capacity may make a Will that appoints an Executor. Although it is not required, it is wise to also name an alternative Executor in case the first person is unable or unwilling to act. The main duties of the Executor (who must also be at least 18 years old and have the mental capacity to act) will be to:

* liquidate and/or sell the maker's property;

* pay off debts and cover funeral expenses from the Estate; and

* distribute the assets of the Estate in accordance with the maker's instructions.

The Act does not define the mental capacity required to make a Will, so lawyers and judges have had to look to case law. The classic, leading case in the English-speaking world about the mental capacity to make a Will, (called by lawyers "testamentary capacity") is Banks v Good fellow (1870), LR 5, QB 549. This 19th century decision from the United Kingdom stands for the proposition that an adult's freedom to give away their property after dying, as they deem fit while living, is of fundamental importance. The test for whether a maker has testamentary capacity, though not an exact science, does include certain characteristics. The maker must understand what s/he is doing at the signing of the Will; must have at least a general idea of the nature of their assets and their value; and know who their beneficiaries are and their relationship to her/him.

There is an exception to the age requirement (but not to the requirement of testamentary capacity) for a person under 18 who is or was a spouse or is or was an adult interdependent partner of or was a member of Canada's military in active service at the time the Will was...

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