In Alberta, the new Wills and Succession Act came into effect on February 1, 2012. It replaces the Wills Act, Dependants Relief Act, Intestate Succession Act, Survivorship Act, and s. 47 of the Trustee Act. It is the primary statute dealing with wills, intestacy, survivorship, dependant's support, beneficiary designations, and other succession issues. The act includes significant changes to Alberta's Matrimonial Property Act and the Family Law Act.
The Wills and Succession Act is based on three fundamental principles (from the Government of Alberta's website):
- “A person is free to transfer his or her property to others upon death and any interference with a person's wishes in this regard must be justified.
- If a person does not formally indicate how they want his or her property distributed upon death, it is presumed that the person wants it to go to family members.
- A person's freedom to transfer property on death is subject to satisfying the person's legal and family support obligations.”
(Note: the term “personal representative” is the current legal term used to refer to an executor/executrix, administrator/administratix, and judicial trustee.)
Result of the New Wills and Succession Act Alberta
The changes the act made include:
- Marriage or entering into an adult interdependent partnership no longer automatically revokes a will.
- After divorce or after adult interdependent partners have been separated for one year, the ex-spouse/partner is considered to have predeceased the testator (person who made the will). This means he or she cannot receive a gift under the will or act as executor, trustee, or guardian. This change does not apply to beneficiary designations on insurance policies or investments.
- Adult children under the age of 22 and in school full time and minor grandchildren or great grandchildren for whom the deceased acted as a parent can now apply to change the provision for them under the will or if the person dies without a will. This is in addition to a spouse/partner, minor children, and disabled adult children who cannot earn a living.
- If a spouse or adult independent partner is not named on title to a property or lease, the Wills and Succession Act allows for the spouse/partner to remain in the deceased person's home for three months, with the estate paying the costs.
- If the deceased did not have a will and left a spouse/partner, and all the children of the deceased are from that relationship, the spouse/partner receives the entire estate. If the deceased has children from another relationship, the spouse/partner receives the greater of the preferential share of $150,000 or half of the estate residue and the children receive the rest.
- If there is a spouse and an adult independent partner, they split the preferential share of $150,000 (or half of the estate, whichever is greater) if there are children. If there are no children, they split the entire estate equally.
- A spouse is disinherited if separated from the deceased for at least two years, or where there is a court declaration of irreconcilability, or a court order or agreement intended to permanently finalize the marital affairs.
- The court may now validate or rectify unclear or improperly prepared wills in some circumstances.
The Wills and Succession Act is divided into seven parts: Part 1 Survivorship, Part 2 Wills, Part 3 Distribution of Intestate Estates, Part 4 Designation of Beneficiaries Under Plans, Part 5 Family Maintenance and Support, Part 6 General, and Part 7 Consequential and Related Amendments, Repeals, and Coming into Force.