Previous columns have stressed the importance of reviewing your Will regularly to ensure it is up to date. The passage of time, changes in your circumstances, and changes in the circumstances of persons named in your Will, are good reasons for reviewing your Will. Now there is another reason – the Alberta Government.
The Alberta Government has passed the Wills and Succession Act (WSA). Most of the provisions of this Act will come into force on February 1, 2012. The purpose of the WSA is to update Alberta succession (inheritance) laws and harmonize Alberta succession laws with the succession laws of other provinces. The focus of this article is to highlight some of the changes which will affect Medicine Hat estate plans.
Adult Interdependent Partner
In this article reference is made to Adult Interdependent Partner (AIP). A person is the AIP of another if:
a) The person has lived in a relationship of interdependence:
i) for a continuous period of not less than 3 years; or
ii) of some permanence if there is a child of the relationship by birth or adoption; or
b) The person has entered into an adult interdependent partner agreement.
Prior to the WSA marriage cancelled a Will and divorce does not affect a Will. After the WSA:
a) marriage will not cancel the Will; however
b) an ex-spouse or AIP will be excluded from any gifts in the Will unless the Will shows a contrary intention for inclusion.
The change results in not only the spouse or AIP being excluded from the gift but also cancels their appointment as executor, trustee or guardian. Therefore, it will be very important to confirm your intentions in the Will if you wish to obtain a different result from what is provided in the WSA.
A potential problem in estate administrations is how life time advances to children are treated in the Will. Are they to be deducted from the child’s inheritance share? Before the WSA the law presumed the advance was to be taken into account and deducted from the child’s inheritance share. The presumption is now abolished. The WSA sets out a procedure for applications to be made to Court to determine whether life time advances are to be taken into account and deducted from the inheritance share. It will be very important to confirm your intentions (in your Will and documents signed at the time of the advance) on property or money transferred to a beneficiary during your lifetime.
Matrimonial Property Act (MPA)
A major change will occur on the application of the MPA to estate administration. The change will have a significant effect particularly on Wills involving blended families (families in which there are step children). Due to concerns raised by Alberta estate lawyers this change has been delayed. Next month’s column will consider the proposed change.