This article speaks to conditions in a will that may cause its revocation or invalidity.
When people put in the time and effort to write a will, they likely want to ensure that everything in the document is in order. The person writing the will, or the testator, would not want his or her will unintentionally revoked, and there are certain criteria a will must meet for it to be valid.
The document must be written and not in video or audio format. It must also bear the signature of the testator and the signatures of two witnesses, with an exception regarding witnesses made for those in the military who are on active duty. The province of Alberta may recognize a will that is completely handwritten by an individual and unwitnessed (called a holographic will). However, heirs can easily challenge the authenticity of this type of will due to the lack of witnesses, and its validity is at the court’s discretion.
When is a will no longer legally binding?
Several actions taken by the testator can result in the revocation of all or a portion of a willdepending on the circumstances, including the following:
- The marriage of a single person with a Will (if the marriage took place prior to February 1st, 2012)
- The creation of a new will
- The destruction of a will by the testator
- The destruction of a will by someone else at the direction of the testator
- The express written revocation of a will
If a single person wants to ensure that a will remains legal despite marriage, a clause regarding the contemplation of marriage must be included in the will. When a testator destroys a will, the law then considers that person as having died without a will (intestate). A prior version of the will, if any, does not regain its validity after the destruction of the current will. Simply implying the intention to revoke a will does not meet the legal standard, which is why it must be in writing.
Changes that don’t merit revocation
Any changes to a will must occur in accordance with current law for them to stand up to legal scrutiny. However, there are certain circumstances in which changes will not result in a will’s revocation. If a testator divorces, his or her will is still valid.
The testator should expressly indicate if he or she would still like any bequests to a former spouse to be bona fide. A will still retains its legally binding status in the event the named executor or heirs die. If there is any damage or defacing to the will, it retains its legitimacy.
By taking advantage of the resources available to them, those in Alberta who are contemplating creating a will would be able to ensure the document is consistent with all the laws within the province. Updates to one’s will may occur as life situations change. By speaking to a lawyer experienced with wills and estate planning laws, an individual would be able to both properly fashion a will and/or make any necessary changes become legally binding.