Wills and succession law amends family law.

• Author: Wright, Kelly
• Position: Feature: Wills and Estates

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There are two important changes in the area of family law that have been introduced by the new Wills and Succession Act, which came into force on February 1, 2012. First, the new legislation permits the surviving spouse or adult interdependent partner of the deceased to have temporary possession of the family home. Second, the Act addresses how the death of a spouse may potentially affect matrimonial property division.

Temporary Possession of the Family Home

The new Wills and Succession Act addresses the needs of the modern Albertan family by allowing for temporary possession of the family home upon the death of a spouse or adult interdependent partner. Prior to this Act, there was no provision for the right of a surviving spouse or adult interdependent partner to remain in the family home after the death of their spouse or adult interdependent partner apart from the Dower Act. That Act gives a surviving spouse the right to a life estate in the homestead of their deceased spouse. This legislation, however, only applies to a couple who is legally married, and where the family home fits the definition of "homestead" under the Dower Act. Generally, the legislation allows the surviving spouse to have the use and enjoyment of the family home and the contents when the home was-registered solely in the name of the deceased spouse.

The Wills and Succession Act gives a surviving spouse or adult interdependent partner the right to continue to live in the family home for a period of 90 days where the surviving spouse or adult interdependent partner is not registered on the certificate of title or a party to the lease for the family home, but is ordinarily occupying it. The calculation of 90 days commences upon the death of the spouse or adult interdependent partner, and is good against all parties that may have an interest in the family home other than a disabled child.

The significance of this legislation should not be underestimated. It protects a remaining spouse or adult interdependent partner, and by default any children in the home, from being immediately removed from the family home by third parties. Third parties may include beneficiaries under a will; heirs on intestacy; individuals who hold an interest in the home as a co-owner; landlords; creditors (secured or unsecured); and any individual who enters into a contract to purchase the family home, even where that purchaser enters into the contract without knowing that...