The Covid19 virus has led to many changes in our world. Physical distancing, self isolation, increased promotion of on-line purchasing and curb side pickups are a few of the changes we have seen not only in Medicine Hat but around the world. One area to date, though, has not changed in Alberta- the legal requirements for making a valid Will. This is of significant importance for those concerned about their health and wanting to update their Wills.
The Wills and Succession Act specifies to be valid a Will must be in writing, contain the signature of the person making the Will (Testator) and may be created in Alberta as follows:
1. Formal Will- is made if the Testator makes or acknowledges his signature in the presence of 2 witnesses who are both present at the same time AND each of the witnesses signs the Will in the presence of the Testator.
2. Holograph Will- is made if the Will is wholly in the Testator’s own handwriting and signed by the Testator without the presence or signature of a witness. Note: Store purchased Wills completed by the Testator do not qualify as Holograph Wills as they are not solely in the Testator’s handwriting.
3. Military Wills- A member of the Canadian Forces while on active service may make a Will by signing it, without the presence or signature of a witness or any other formality.
Stricter rules for signing Wills, as opposed to other documents, have been developed due to the importance of the document and because the Testator is not available to give evidence on the signed document should questions arise on the estate administration. However, a pandemic world is making it difficult for persons to balance the importance of updating their Wills with the importance of remaining safe by following the physical distancing or self isolation guidelines. This difficulty is leading to lawyers looking at alternative signing requirements and making representations to governments to change the rules to make it easier to prepare a valid Will in a pandemic world. Ontario has changed the rules to allow for Wills to be witnessed through video conferencing and some jurisdictions are moving toward electronic Wills.
Alberta, to date, has not changed the strict rules on signing Wills. However, this should not discourage people from updating their Wills and other estate planning documents. In today’s pandemic environment it is more important than ever to have up to date estate planning documents. Estate planning lawyers are working within the strict rules for Will signing while maintaining the personal safety of their clients, staff and themselves. For those in strict isolation, such as in hospital, holograph Wills can be used as an intermediate solution until a formal Will can be signed.
The law has always been slow to keep up with changes in society and estate planning lawyers are now having to deal with a procedure which is out of date not only because of the pandemic but also because of the technology we now take for granted as part of our daily routines. Hopefully, the COVID19 pandemic will give the impetus needed to speed up the changes required for the rules on the signing of Wills to be updated to meet the challenges presented not only by the pandemic but also recent technology advances.
Stay safe and healthy Medicine Hat!
Malcolm Pritchard helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and a member of the Society of Trust and Estate Practitioners. Contact Malcolm at (403) 527-4411 or at email@example.com