Wills And Succession Act

[troutman]

http://justice.alberta.ca/programs_s...T.svl=programs



The Wills and Succession Act is a new law that consolidates the Wills Act, Intestate Succession Act, Survivorship Act, Dependants Relief Act and section 47 of the Trustee Act. It also includes changes to the Matrimonial Property Act, the Administration of Estates Act, and the Family Law Act.

This single Act specifies how and to whom property is transferred when a person dies. It makes Alberta’s succession legislation easier to use and understand.

The Wills and Succession Act will come into effect on February 1, 2012.

Important changes:

http://justice.alberta.ca/programs_s...Form.aspx?ID=4

The admission of extrinsic evidence (i.e. evidence which is not contained in the document itself) is permitted in interpreting a will. The court may admit corroborated outside evidence, including evidence to help prove the deceased’s intention.

I think the foregoing change is a response to the number of home-made will kits being deficient, allowing the Court to rectify poorly drafted wills.

[Bobblehead]

How bad is the issue with Will kits?

I mean I'm sure they don't even compare to getting it done correctly by a lawyer, but are there so many poorly done Will kits that they are creating a legal backlog?

Or is this to prevent the issue from becoming untenable?

[ThisYear]

Are they trying to say my will kit bought on Groupon is "deficient"?!!? WWHHHAAATTTT!?

[troutman]

Originally Posted by Bobblehead

How bad is the issue with Will kits?

I mean I'm sure they don't even compare to getting it done correctly by a lawyer, but are there so many poorly done Will kits that they are creating a legal backlog?

Or is this to prevent the issue from becoming untenable?

IIRC, up to 40% of probate applications are being made by unrepresented executors. That, combined with many poorly drafted will-kits, seems to have bogged down the Surrogate Court.

Lawyers make more cleaning up the mess, than they would preparing proper wills.

Lawyers in Alberta had a big concern that the new Act was going to allow ex-spouses to "double-dip" in the estate. I am trying to determine if those sections were revised, forcing the ex-spouse to make an election between the gift in the will and the matrimonial claim . . .

From Alberta Justice - "The concerns have been heard and before the matrimonial property provisions come into force, focused discussions with members of the bar will be held . . . to be completed by the summer of 2012".

[Rathji]

I think this is both a good idea and a bad one. First, as you mentioned, it obviously makes things simpler and allows for more leeway if the will isn't clear. Wouldn't it also potentially cause more problems with people trying to bypass the intent of the will? Or is that such a rare occurrance that it really shouldn't figure into it.

On another note: Do you think something like this would something like this hamper your lucrative "will business", if people are more comfortable writing their own, knowing a minor screw up wouldn't be a disaster?

[troutman]

I think it is good that the new Act goes farther in trying to respect the Testator's intentions.

Getting a will rectified in court is not a simple matter, so it is still wise to get it properly drafted from the outset.

[Makarov]

Isn't it easier to just die penniless and destitute?

[onetwo_threefour]

So is this where all the legal nerd talk is happening today?

i'd join in, but strangely enough I have a will to get working on. I suspect I may need to get the new act read before starting, to be safe...

[GP_Matt]

Question, if you die without a will in Alberta does everything automatically transfer to your wife? I am thinking about a situation without children or a prenup where everything is in both names anyway.
I always hear that you should have a will, but have put it off with the intention of everything transferring between us and I don't really care what happens if we both die. If we both die would the families have to fight over things or is the default to split things between our respective estates and let them fight over the distribution of each half?
If this is stepping over the line of asking for free advice, feel free to let me know that I should just see a lawyer and get it done right.

[troutman]

Originally Posted by GP_Matt

Question, if you die without a will in Alberta does everything automatically transfer to your wife? I am thinking about a situation without children or a prenup where everything is in both names anyway.
I always hear that you should have a will, but have put it off with the intention of everything transferring between us and I don't really care what happens if we both die. If we both die would the families have to fight over things or is the default to split things between our respective estates and let them fight over the distribution of each half?
If this is stepping over the line of asking for free advice, feel free to let me know that I should just see a lawyer and get it done right.

If everything is owned jointly, it would simply pass to the survivor, whether or not there is a will.

When there is no will (an intestacy), the Act in your scenario would distribute an estate to the surviving spouse.

Share of spouse or adult interdependent partner
if no descendants
60 If an individual dies leaving a surviving spouse or adult
interdependent partner but no descendants, the entirety of the
intestate estate goes to the surviving spouse or adult interdependent
partner.


One of the changes in the Act:

If there is no will and a person leaves both a spouse/partner and children of the relationship with that spouse/partner, everything goes to the spouse/partner, instead of being shared between the spouse/partner and children.

[AR_Six]

Originally Posted by GP_Matt

Question, if you die without a will in Alberta does everything automatically transfer to your wife?

Yes.

Originally Posted by Intestate Succession Act, RSA 2000 c.c l-10

Spouse or adult interdependent partner and no issue
2 If an intestate dies leaving a surviving spouse but no issue or leaving a surviving adult interdependent partner but no issue, the intestate’s estate goes to the spouse or adult interdependent partner, as the case may be.

The reason behind this has nothing to do with people trying to draft their own wills, though that is a significant problem. Other provinces have already done this consolidation exercise and Alberta is just following the trend. B.C. did it in 2009, IIRC.

Wills and estates law is in a very unfortunate state. The problem is that it's extremely undervalued by the market (i.e. "I should be able to get a will for $X") while being a very complicated area in which long-standing jurisprudence has created a lot of strange and baffling rules from the layman's perspective. Given the myriad facts that can be involved in administration even experienced lawyers can easily mess this stuff up, and a word in the wrong place turns into a ticking time bomb for your insurance when the person dies and the will ends up in front of a court. For the little that you're being paid it's not a cost effective practice.

[macker]

www.formalwill.ca

[GP_Matt]

Can you leave things in your will to someone other than your wife? I assume you can't violate the dower act, but can you leave half your money to a third party. Or do you have to setup a life estate for your wife where she keeps the house until she dies and then half the proceeds are distributed as per your guidelines.
I am thinking of a childless couple where one spouse dies. I think the default position is that everything goes to the survivor and the survivor can distribute everything in their will as they see fit. So the end result of my rambling is: Can a will overcome the wishes of the surviving spouse?

[AR_Six]

You can leave things in your will to pretty much whoever you want, though if you leave your house in your will to someone else, your spouse gets a life interest first.

[troutman]

Originally Posted by GP_Matt

Can you leave things in your will to someone other than your wife?

Yes, subject to the rights of the wife to make an application for Family Maintenance and Support, under Part 5 of the Act (Matrimonial Property over-laps are still being discussed). Rights to temporary possession of family home, is covered in section 75.

[username]

Originally Posted by Makarov

Isn't it easier to just die penniless and destitute?

If I plan my life right the last cheque I write will bounce.

[Makarov]

Originally Posted by username

If I plan my life right the last cheque I write will bounce.

May as well make it the last few. I'll let my executor worry about the $40 NSF charges.

[bizaro86]

Originally Posted by GP_Matt

Question, if you die without a will in Alberta does everything automatically transfer to your wife? I am thinking about a situation without children or a prenup where everything is in both names anyway.
I always hear that you should have a will, but have put it off with the intention of everything transferring between us and I don't really care what happens if we both die. If we both die would the families have to fight over things or is the default to split things between our respective estates and let them fight over the distribution of each half?
If this is stepping over the line of asking for free advice, feel free to let me know that I should just see a lawyer and get it done right.

That's exactly the same situation I'm in, and I haven't dealt with it for the same reason. If my family can't agree to a reasonable split with her family in the event of both of us dying, then they don't deserve the money anyway, and it can all get spent on legals. In a first marriage with 100% joint assets and no children/dependents, it hasn't seemed like a big enough issue to justify getting off work early to sit down with a lawyer.

It's on the list, but has never happened. Probably should get to it, but just like de-icing the freezer, it never seems to happen

Edited to add: and actually, it looks like the new act referenced above covers me on that situation anyway:

If two or more people die at or around the same time, the property is distributed as if each person died before the other. Previously, if two or more people died at about the same time, for property distribution purposes, the youngest was deemed to have survived.