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Capacity: What is it and why is it needed to plan an estate?

wills Apr 08, 2020

In Alberta, the only limitation to a person over 18 signing a Will, Power of Attorney and Personal Care Directive is that they have the mental capacity to do so. It may seem like a simple concept, but the truth is many people don’t know that capacity is required to have these documents made for individuals.

Why is Capacity Needed?

The largest concern for these Estate Planning documents is that the person executing them, at the time of execution, understood the nature and effect of what they were signing. These documents allow another person or persons to have large amounts of control, the need for capacity comes from the desire to ensure that people giving away that level of control understand exactly what they are doing. If it is determined that capacity was not held at the time of execution, the court can declare the document invalid and it is no longer of any effect. 

What is Capacity?

For Wills this mental capacity is sometimes called "testamentary capacity" and...

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Does Alberta have a will registry?

miscellaneous wills Feb 05, 2020

Currently, there is no mandatory will registry in Alberta. There are a couple of organizations trying to make a wills registry in our Province. Two that I know of are:

  1. Registry agents virtual vault - https://registryagents.com/alberta-virtual-vault
  2. Wills registry - https://www.noticeconnect.com/how-it-works/canadawillregistry/

There is a registry in British Columbia. If you are looking for a will in that province take a look at BC Wills Registry.

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Should my 18 year old have a will?

In Alberta, most people have to be 18 years of age to write a will. There are a variety of exceptions to this rule, for example if you a minor has a child or is a member of the military then you may be able to write a will while you are a minor. However, by and large most minors are unable to create a will in Alberta until their 18th birthday. 

Should your child write a will when they turn 18?

Like so many things in life, the answer depends on your child circumstances. Some reasons to have your child write a will include:

  1.  Do they have property? For example did they inherit money from a grandparent?
  2. Are they estranged from a parent or sibling and want to make sure this person doesn't inherit property if they die?
  3. Have they moved in with a girlfriend or boyfriend and want to make sure that these people do/do not inherit money if they die?
  4. Do they owe money to people and need to deal with these debts if they die?
  5. Do they have an illness or a risky occupation or hobby that...
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Do I have a right to be shown the Will?

wills Jan 08, 2020

Every month, our office receives calls from people who are seeking legal advice on their right to view a Will. They tell us that the executor of an estate is refusing to show them the document and they want to know what their rights are; and the answer to this depends on who they are and what their relationship is with the deceased. Let us explain.

An executor is entitled to maintain the privacy of the deceased. There is no legal obligation for them show the Will to anyone, nor do they have to provide the document to anyone who requests a copy. Further, there is no legal right for anyone to demand to view a Will shortly after a death. If the Will is being held by a lawyer, that lawyer has no obligation to provide a copy of the document to anyone other than the executor of the estate. The hired lawyer acts under the direction of the executor, and unless they were instructed to share the Will, they cannot distribute copies to family members or to friends of the deceased.

In Alberta,...

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It’s a New Year: Make or Update Your Will!

wills Jan 01, 2020

Many of us make New Year’s resolutions each year and, more often than not, these resolutions prove to be unsustainable. In fact, right about now, you may be starting to question whether or not you will be able to achieve some of your goals! Making a new Will or updating an existing Will is a resolution that is relatively easy to achieve.   

Two of the most important functions of a Will are:

  1. To appoint an executor to manage your affairs and wrap up your estate when you are gone; and
  2. To direct how and to whom your assets are to be distributed. 

That said, there are other significant issues that can be addressed through a Will.  If you have minor children, or a disabled child, a Will can name a guardian and set out your wishes with respect to the distribution of your estate to your children and/or their guardian.  A Will can also establish a trust or some other means of managing assets to benefit a disabled child.  Tax planning, the making of...

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How "out of the box" can I be when writing my will?

wills Oct 16, 2019

While many people don't have a Will in Canada (51% according a 2016 Angus Reid Institute poll), some of us can't help but leave little creative twists in the ones we do make. There are a range of example, take for instance Roger Brown; in his Will he bequeathed 3500 pounds be left to his seven friends so long as they use it to fund a "boozy trip" to Europe. 

Or perhaps some prefer the sweeter bequest by Jack Benny,  a US comedian, who left instructions that one long-stemmed rose be delivered everyday to his widow’s home.

There is also the very public-spirited bequeath left anonymously in 1928 which stipulated that half a million pounds, now worth roughly 350 million pounds, be used to clear the national debt. However, the money can only be used once it is enough to clear the whole of the national debt in Britain, and so the money sits untouched to this day as the debt grows to above 1 trillion pounds. 

In another example, Luis Carlos de Noronha Cabral de Camara,...

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Video Wills: Verifying a Testator's Intention

wills Oct 09, 2019

Something that is often forgot throughout lengthy, expensive and emotionally exhausting estate litigation cases is that the court is taking so much care and diligence, and thus time, in hearing these cases because they are trying to determine the intentions of a person who has passed.

This task is rendered all the more difficult if there is ambiguity in wording, missing information or uncertainty in which is the true last Will of the testator. The focus for today’s blog is the latter of these issues: verifying a true last Will and Testament.

The ‘ambiguity’ in determining the authenticity of a Will can take a large amount of time and expense: from a hand-writing expert’s time, a lawyer’s time to prove the case and the expense of litigation to determine acquiescence to formalities and validity of the Will. In this digital age, it is not shocking that some have turned to videotaping Will signings in an attempt to demonstrate capacity of the testator and...

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The Line Between Influence and Undue Influence

wills Oct 02, 2019

In a time that should be allocated to grieving over the loss of a loved one and celebrating their life before passing, the friends and family of Brooke Astor were thrown in a legal battle that lasted almost 7 years after her death in 2007.

The Astor fortune was said to be around $100 million at the time of Brooke Astor’s death, and as a well known philanthropist, Mrs. Astor left much of that to charity, while still providing very generous legacies to her many friends and family members. Of particular importance to this cautionary blog is her bequest to her son, Anthony Marshall, from her second marriage. She had left him a sum of approximately $31 million in her 2002 Will. In the years leading up to Mrs. Astor’s death, Marshall and his lawyer, Francis Morrissey, had the ailing Mrs. Astor sign three (3!) codicils changing her original Will to give less and less to charity each time, and more and more control and money to Marshal. In the end the two attempted to cheat Mrs....

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The Power of a Written List

estate planning wills Sep 25, 2019

When thinking of the legacies you are leaving people, it can be difficult to decide what to give and to whom. Money is often a large part of inheritance, but perhaps there are certain items you wish to bequeath to family and friends as a way to remember you. To whom and what you bequeath is an important consideration that is worthy of as much time as is put into considering your residuary beneficiaries. 

What are the main concerns?

What you leave to your loved ones after your passing can define the legacy left to them. Being too ambiguous in leaving heirlooms opens the door for litigation and disputes over the distribution of your personal property after you pass.  While it is possible and recommended to bequeath items you know you want to pass on in your Will, your collections and personal property may change from when you have a Will created and when you pass. It is always possible to leave a memorandum that directs your executor to distribute your...

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Why is it important to review your Will?

wills Sep 04, 2019

Your Will is the document that specifies how your estate will be distributed upon your passing. Once it is made, it should be reviewed and updated to account for any major life changes. Many people will create a Will, store it in a safe place, and then forget about it, failing to consider that when it comes time to read the Will, it may not adequately address new or altered relationships and circumstances. Here are three reasons why you should review your Will:

You need to appoint a new Executor:

You may find that your Executor is no longer able to act (possible due to a change in their lifestyle, relocation, growing old, etc.), or that you simply want to name a new individual (or individuals, or a trust company) to administer your estate;

You are no longer in contact with a beneficiary:

If one of your beneficiaries has passed away, it is important to update your Will to ensure that their share is allocated according to your wishes;

You got divorced:

While Alberta law provides that...

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