2 Matter Plans Included
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Forms
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Surrogate Forms
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Grant Application (GA) Forms
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Affidavit of Witness to a Will
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ALERTS - Nil
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Full Commentary - Wills (AB)
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Reference materials
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AI Prompts
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Electronic Signing and Remote Witnessing
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Further information
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Overview
A will is a legal document to deal with assets and liabilities and the custody of a minor child in the event of death. A person who dies without a will is said to die intestate, which results in the distribution of the deceased’s assets being determined by statute. A valid will ensures some control ...
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A. Getting the matter underway
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Taking instructions for wills
Instructions should be taken from the client. Instructions received from another person need to be confirmed with the client. In addition to ensuring that the client’s interests are protected, it ensures the client has the testamentary capacity necessary for the will to be valid and has not been ...
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Testamentary capacity
One of the first questions is whether the testator has testamentary capacity. Section 13(1) of the Wills and Succession Act provides the class of persons who can make a will: any individual who is 18 years of age or older with the mental capacity to do so. The leading authority concerning ...
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File cover sheet - Wills
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To do list - Wills
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First steps
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Client details, verification, and source of funds
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Retainer instructions - Wills - For an individual
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Retainer instructions - Wills - For a couple
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Conflict of interest check
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Costs
Costing wills can be difficult. The extent of the work required is often not clear at the outset. While many wills are simple, the complexity of a client’s financial position or family arrangements can mean hours spent taking and confirming instructions, reviewing documents, and possibly liaising ...
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Initial letter to client enclosing retainer agreement
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Retainer agreement - Alberta
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Scope of work - Wills
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Letter to individual client to confirm instructions
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Letter to spouse clients to confirm instructions
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If required - Advice on testamentary discretionary trusts
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Letter to client advising on testamentary discretionary trusts
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Enclosure - Benefits of testamentary discretionary trusts
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If required - Authority for wills
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Letter to client's previous lawyer with authority for wills
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Authority to client's previous lawyer to forward wills
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Time and costs estimates
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If required - Costs disclosure update and a non-engagement letter
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Letter to client updating costs disclosure
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Non-engagement letter
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General deeds, agreements, execution clauses, and statutory declarations
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Deeds and Agreements
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Deeds
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Confidentiality deed
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Deed for general use
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Deed of assignment of agreement
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Deed of gift
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Deed of guarantee
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Deed of release
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General deed of indemnity
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Library of standard clauses for deeds
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Agreements
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Agreement for general use
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Heads of agreement
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Non-disclosure agreement - Formal
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Non-disclosure agreement - Informal
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Library of standard clauses for agreements
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Execution clauses
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Execution clauses - Agreements and contracts
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Execution clauses - Deeds
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Statutory declaration
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Statutory declaration
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Standard annexure note for documents
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B. Will considerations and other estate planning
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Formal requirements
The Wills and Succession Act set out the following formal requirements of a valid will:
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Informal wills
An informal will does not strictly comply with the legislative requirements. The Court of King’s Bench of Alberta has the power to declare a will valid where they are satisfied that the document sets out the testator’s testamentary intentions despite the execution requirements not being strictly ...
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Revocation, marriage, divorce, separation, and revival
Revocation Section 23(1) of the Wills and Succession Act deals with when and how a will can be revoked.
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Personal representative and estate trustee
A personal representative includes an executor, an administrator, or a judicial trustee of the deceased's estate: s 1(h) of the Wills and Succession Act. A personal representative is appointed by the testator or the court to carry out the deceased’s directions in the will and administer the ...
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Burial and cremation
Following the appointment of executors, the client often provides instructions as to burial or cremation, such as:
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Guardianship of minor children
Whether to include a provision raises difficulties. Most often, the decision is made not to, as the children will go to the family best able to care for them, which is unknown at the time of making the will. The Family Court will decide in the children’s best interests if an intractable dispute ...
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Disposition of property
The disposition of property is an area in which true complexity can arise.
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Possession rights of a surviving spouse or partner to the family property
Under s 75(1) of the Wills and Succession Act, a surviving spouse or partner, who is not registered on the certificate of title as an owner of a family home, is entitled to possession of the family home for 90 days commencing from the date of the spouse’s or partner’s death. The spouse or ...
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Impact of the Dower Act
The Dower Act 2000 prevails over the provisions of Parts 2 and 3 of the Wills and Succession Act: s 2 of the Wills and Succession Act. Any disposition in a will affecting the deceased’s homestead is postponed until the surviving spouse's death because a surviving spouse is entitled to a life ...
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Impact of the Family Property Act on will planning
A family property order is:
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Pension death benefits
Pensions The Canada Pension Plan or retirement savings account are forming an increasingly large proportion of people’s wealth. Unfortunately, most individuals may die without ensuring that the person they intend to inherit benefits will receive them. The rules that apply differ depending on when ...
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Taxes
Various taxation implications arise under a will. For lawyers who do not practise in this area, the best advice that can be given to a testator is for them to seek advice from their accountant or tax lawyers before the will is finalized. Sending a copy of the draft will to the client’s accountant ...
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Intestacy
Part 3 of the Wills and Succession Act deals with how the deceased’s assets will be distributed if they do not have a will.
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Challenging the validity of a will
To challenge a will is to question its validity rather than the fairness of its provisions. Judges do not have the discretion to set aside a will simply because its provisions are unfair, or the testator did not leave the estate to their descendants. If the will or a provision is contrary to the ...
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C. The will
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Wills for individuals
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Individual will - Client 1
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Individual will - Client 2
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Wills for spouses
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Spouse will - Client 1
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Spouse will - Client 2
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Wills for blended families
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Blended families
It is not uncommon for people with children from previous relationships to enter a new marriage. For testators in second or subsequent marriages or relationships, protecting the interests of the children of the prior relationship is a common consideration. Regardless of how harmonious such blended ...
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Blended family will - Client 1
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Blended family will - Client 2
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Wills creating testamentary discretionary trusts
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Testamentary discretionary trusts
A testamentary discretionary trust is simply a discretionary trust established by a will, usually to benefit family members. It is also a specific vehicle for taxation purposes. See Henson trust. A testamentary discretionary trust can be established to benefit non-family members or organizations ...
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Will creating testamentary discretionary trust - Client 1
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Will creating testamentary discretionary trust - Client 2
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Will creating multiple testamentary discretionary trusts - Client 1
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Will creating multiple testamentary discretionary trusts - Client 2
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Library of clauses
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Assets - Asset management
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Assets - Quarantining assets from a nominated jurisdiction
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Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
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Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
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Body - Burial in reserved plot
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Body - Burial with modest funeral
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Body - Cremation
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Body - Funeral service location
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Body - Medical research purposes
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Body - Medical research purposes excluded
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Body - Organs for donation
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Clause creating a Henson disability trust
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Clause to leave money or property via will to pre-existing disability trust
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Clause establishing disability trust with trust deed annexed - Executors as trustees
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Clause establishing disability trust with trust deed annexed - Appointing trustees
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Clause to establish disability trust - Executors as trustees
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Clause to establish disability trust - Executors to appoint trustees
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Deemed disclaimer of an interest under this will
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Digital rights - Specific bequest of digital rights
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Divorce - Will in contemplation of divorce
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Education trust for grandchildren
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Gift of business to employees
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Gift to spouse with reasons for children of previous marriage
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Guardian - Appointment of guardian when spouse is the other parent
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Guardian - Appointment of guardian when other parent has not survived
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Home - Right of occupation of home
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Hotchpot - Excluding hotchpot
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Hotchpot - Including hotchpot
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Lawyer - Direction for appointment of lawyers
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Lawyer executor - Charge fees
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Life estate
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Life insurance used for debts
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Monthly payment - Establish a monthly payment not an annuity
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Option - Grant an option to purchase to a beneficiary
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Pets - Gift of pets
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Registered education savings plan
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Registered retirement savings plan
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Spouse - Definition - Spouse of a person
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Testamentary trust intentions for beneficiaries
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Trustee - Separate trustee for minor beneficiary
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Library of deeds, contracts, and codicils
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Deed not to change will
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Deed not to change will in favour of mortgagee
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Mutual wills - Contract to make mutual wills
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Codicil
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Library of attestation clauses
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Blind
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Can read but unable to write
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Can read but unable to write or make a mark
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Can write but unable to read
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Unable to read but can speak and understand English and can sign
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Unable to read or speak English but can sign
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Unable to read or write
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Unable to speak or read English or write
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Disability trust - Deed, variance, and clauses
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Henson trust and qualified disability trust
Henson trust A Henson trust is a testamentary trust created by common law that a testator can set up for a dependant living with a disability to ensure the dependant does not lose the right to receive government disability benefits. A Henson trust provides a mechanism to prevent this outcome, as ...
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Qualified disability trust deed
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Deed of variation for qualified disability trust
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Clause creating a Henson disability trust
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Clause to leave money or property via will to pre-existing disability trust
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Clause establishing disability trust with trust deed annexed - Executors as trustees
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Clause establishing disability trust with trust deed annexed - Appointing trustees
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Clause to establish disability trust - Executors as trustees
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Clause to establish disability trust - Executors to appoint trustees
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Multi-jurisdictional estates and international wills
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Multi-jurisdictional estates and international wills
Multi-jurisdictional estates Alberta residents may have property outside Alberta and Canada, just as residents of other provinces or countries may have property in Alberta. It may be suitable to appoint executors over the whole estate regardless of location. Grants of probate can be resealed if the ...
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International will certificate
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D. Execution
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Execution
The testator must first declare in the presence of two witnesses and a lawyer that the document is their will and they know its content. They must then sign each numbered page of the will or acknowledge the signatures in the presence of the two witnesses and the lawyer. The witnesses and the lawyer ...
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Letter advising client that wills are ready for signing
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Letter reminding client that wills are ready for signing
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If required - Sending will to client for signing
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Letter to client enclosing will to sign
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Affidavit of Witness to a Will
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Enclosure - Instructions for signing
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E. Finalizing the matter
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Storage
If the will is kept by the firm in safe custody, it is best entered into a safe custody register and placed in a trackable envelope, never just kept on the file. A copy of the will should be provided to the testator. The firm’s contact details, either on the cover sheet or a letter enclosing the ...
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Revising the will
Testators should review their will regularly. While this may not be of great significance in the case of small estates or when the testator’s estate is to pass to their spouse then issue, it may be relevant in other situations. Events that may lead to a change of will include a change in asset ...
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If required - Will not signed
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Letter to client finalizing the matter when will not signed
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Letter to client finalizing the matter
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Invoice recital - Wills
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Closing the file
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File closing checklist
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Comments and suggestions for By Lawyers
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ALERTS - Nil
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Full Commentary - Powers of Attorney and Personal Directives (AB)
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Reference materials
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AI Prompts
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Electronic Signing and Remote Witnessing
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Further information
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Overview
As a matter of good practice when preparing wills, clients are to be encouraged to plan and provide for how decisions relating to their financial affairs, health care, personal care, or legal affairs will be made in the event they become incapable of doing it for themselves. It is common for a ...
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A. Getting the matter underway
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File cover sheet - Powers of attorney
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To do list - Powers of attorney and personal directives
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First steps
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Client details, verification, and source of funds
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Retainer instructions - Powers of attorney and personal directives
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Conflict of interest check
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Initial letter to client enclosing retainer agreement
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Retainer agreement - Alberta
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Scope of work - Powers of attorney and advance planning
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Time and costs estimates
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If required - Costs disclosure update and a non-engagement letter
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Letter to client updating costs disclosure
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Non-engagement letter
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Advice to clients on capacity
The validity of these documents depends on the capacity of the client to understand them at the time of their execution. As capacity is usually challenged when the maker has become incapable, evidence of capacity at the time of execution assists in rebutting any challenge. If there are any doubts ...
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General deeds, agreements, execution clauses, and statutory declarations
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Deeds and Agreements
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Deeds
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Confidentiality deed
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Deed for general use
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Deed of assignment of agreement
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Deed of gift
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Deed of guarantee
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Deed of release
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General deed of indemnity
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Library of standard clauses for deeds
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Agreements
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Agreement for general use
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Heads of agreement
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Non-disclosure agreement - Formal
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Non-disclosure agreement - Informal
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Library of standard clauses for agreements
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Execution clauses
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Execution clauses - Agreements and contracts
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Execution clauses - Deeds
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Statutory declaration
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Statutory declaration
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Standard annexure note for documents
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B. Powers of attorney generally
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Multiple powers
A donor can have more than one power of attorney at any time. Making a new power of attorney does not necessarily terminate a previous one unless the donor has expressly indicated an intention to terminate the previous power of attorney, or the latter power of attorney is inconsistent with the ...
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Limitations and conditions
When appointing an attorney, the donor determines the scope of the authority they wish to give the attorney. A limited power of attorney allows an attorney to carry out specific tasks or act only subject to particular conditions. Limitations may restrict the power’s use to a specific purpose, such ...
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Transactions involving a power of attorney
When transacting with a purported attorney, necessary precautions include:
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Transactions relating to land
There are no additional requirements when using a power of attorney to conclude a real estate transaction in Alberta. The power of attorney need not specifically mention and describe the land; the real estate may be mentioned and referred to in general terms. Where a power of attorney is specific ...
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C. Enduring power of attorney
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Capacity
At the time a power of attorney is executed, the donor must:
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The attorney
An attorney must:
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Compensation
The Powers of Attorney Act neither provides for nor prohibits the compensation of an attorney. The attorneys are entitled to remuneration if either expressly provided or implied in the enduring power of attorney: Sware v Welda Estate, 1999 ABQB 79,at paragraph 30. An attorney may also apply to the ...
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Enduring power of attorney for client 1
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Enduring power of attorney for client 2
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Library of clauses for powers of attorney
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Access to will
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Compensation for attorney
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Compensation for attorney excluded
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Compensation for attorney greater than prescribed fee scale
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Corporation appointing attorney to conduct the business of the corporation
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Corporation appointing attorney to execute documents
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Discharge of mortgage
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Mortgage
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Purchase of real estate - General
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Purchase of real estate - Specific
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Sale of real estate
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When the enduring power of attorney commences
Generally, an attorney’s powers commence immediately after the enduring power of attorney is signed and witnessed. However, the donor can make the commencement conditional on an event or postpone it to a later date: s 5 of the Powers of Attorney Act. If the enduring power of attorney is to ...
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Execution and witnessing
Section 2(1)(b) of the Powers of Attorney Act sets out the requirements of a valid enduring power of attorney. In addition to being in writing and dated, it must be signed as follows:
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Letter to client for appointment to sign documents
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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Revocation, renunciation, and termination
Revocation An enduring power of attorney can be revoked in writing, provided the donor has the mental capacity to understand the nature and effect of the revocation: s 13(1).
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Revocation, renunciation, and termination
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Revocation
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Revocation of power of attorney
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Revocation of appointment of attorney
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Letter to attorney giving notice of revocation
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Letter to notifiable party giving notice of revocation
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Renunciation
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Letter to interested party giving notice of renunciation
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If required - Acting for the attorney
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Letter to donor notifying that attorney has renounced
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Termination
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Letter to notifiable party giving notice of termination
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D. General power of attorney
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Capacity
At the time a power of attorney is executed, the donor must:
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General power of attorney for client 1
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General power of attorney for client 2
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Library of clauses for powers of attorney
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Access to will
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Compensation for attorney
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Compensation for attorney excluded
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Compensation for attorney greater than prescribed fee scale
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Corporation appointing attorney to conduct the business of the corporation
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Corporation appointing attorney to execute documents
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Discharge of mortgage
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Mortgage
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Purchase of real estate - General
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Purchase of real estate - Specific
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Sale of real estate
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Letter to client for appointment to sign documents
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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Termination
Section 13 of the Act provides that an enduring power of attorney is terminated:
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Revocation, renunciation, and termination
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Revocation
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Revocation of power of attorney
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Revocation of appointment of attorney
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Letter to attorney giving notice of revocation
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Letter to notifiable party giving notice of revocation
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Renunciation
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Letter to interested party giving notice of renunciation
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If required - Acting for the attorney
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Letter to donor notifying that attorney has renounced
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Termination
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Letter to notifiable party giving notice of termination
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E. Personal directive
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Capacity
At the time a power of attorney is executed, the donor must:
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Agents
An agent is someone designated by the maker to make personal decisions on their behalf. An agent must be at least 18 years of age and must have the capacity to make personal decisions: s 12 of the Personal Directives Act. The maker may designate an agent by:
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Limitations and conditions
When appointing an attorney, the donor determines the scope of the authority they wish to give the attorney. A limited power of attorney allows an attorney to carry out specific tasks or act only subject to particular conditions. Limitations may restrict the power’s use to a specific purpose, such ...
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Compensation
The Powers of Attorney Act neither provides for nor prohibits the compensation of an attorney. The attorneys are entitled to remuneration if either expressly provided or implied in the enduring power of attorney: Sware v Welda Estate, 1999 ABQB 79,at paragraph 30. An attorney may also apply to the ...
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Multiple personal directives
A maker may have more than one personal directive, provided that the latter directives do not contradict an earlier directive. An earlier directive is deemed revoked to the extent that it is contradicted by a subsequent directive. See ss 6 and 8 of the Personal Directives Act.
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Personal directive for client 1
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Personal directive for client 2
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Library of clauses for personal directive
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End of life intervention
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Provision of private information
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Execution and witnessing
Section 2(1)(b) of the Powers of Attorney Act sets out the requirements of a valid enduring power of attorney. In addition to being in writing and dated, it must be signed as follows:
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Letter to client for appointment to sign documents
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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When the personal directive comes into force
A personal directive becomes effective only when the maker has lost the ability to understand the information relevant to making a personal decision and appreciate the reasonably foreseeable consequences of the decision. See ss 1 and 9(1) of the Personal Directives Act. The maker may empower ...
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Registration of a personal directive
A maker may disclose the existence of their personal directive by registering certain information relating to it in the Personal Directive Registry. The following are provided to the Minister for registration:
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Personal Directive Registry – Alberta Human Services
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Revocation, resignation, and termination
Revocation A maker may revoke their personal directive so long as they understand the nature and effect of doing so.
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If required - Revocation
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Revocation of personal directive
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Revocation of appointment of agent
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Letter to agent giving notice of revocation
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Letter to notifiable party giving notice of revocation of personal directive
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F. Finalizing the matter
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Letter to client with reminder that documents are ready for signing
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Notification
When instruments are completed, clients typically require assistance in communicating the making or revocation of a power of attorney or personal directive to relevant people or institutions. The attorney and agent are the most obvious parties to notify, but there may be others. For an enduring ...
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Letter to attorney notifying when appointed
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Attorney's acceptance of appointment for client 1
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Attorney's acceptance of appointment for client 2
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Letter to agent notifying when appointed
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Agent's acceptance of appointment for client 1
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Agent's acceptance of appointment for client 2
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Letter to interested party notifying when attorney appointed
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Letter to interested party notifying when agent appointed
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Finalizing the matter
Notification When instruments are completed, clients typically require assistance in communicating the making or revocation of a power of attorney or personal directive to relevant people or institutions.
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
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Letter to client finalizing the matter
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Invoice recital - Powers of attorney and personal directives
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Closing the file
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File closing checklist
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Comments and suggestions for By Lawyers
