As usual under the Covid-19 crisis, everyday situations are made more difficult. Finalizing wills is an area that is usually pretty simple. You give your instructions to your lawyer. Your lawyer takes those instructions and drafts a will. You then come in and sign in front of two witnesses and your will is finalized. The law is fairly clear. Section 15 of the Wills and Succession Act requires for a formal will that the will be signed in the presence of 2 witnesses. Another complication is that witnesses under a will cannot be beneficiaries
Now however both lawyers and clients have to be wary of meeting each other unless they absolutely have to. However the anxiety of this whole pandemic situation is understandably causing many people to want to create or draft a will. So what are people’s options?
Validation of a non-compliant will
Section 37 of the Alberta Act allows the Court to validate a will not done in accordance with section 15. The court will need convincing evidence that the writing sets out the testamentary intentions of the testator. A lawyer can facilitate a virtual meeting to enable this, and bring the necessary application. Practically, lawyers can facilitate virtual meetings, and then bring an application to rectify the will.
There are provisions for wills done wholly in a testator’s own handwriting and signed by the testator. Lawyers typically do not advise clients to do these except as a last resort as it can be difficult for people to know what to put in these documents and it can sometimes lead to unnecessary litigation. However, a holograph will is sometimes better than no will.
Active Military personnel may make a will without formalities.
Covid-19 carries with it the risk of hospitalization. Under the circumstances, anyone getting a will done is advised to do an enduring power of attorney and personal directive. These documents help you deal with your affairs after you have lost capacity to do so.
If you require assistance in having your will, personal directive or enduring power of attorney done
The information contained in this article is information only and not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.