Category Archives: Wills and Estates

An Electronic Change is Gonna Come: Recommendations for the Alteration and Revocation of Electronic Wills

By: Katherine MacKenzie, Legal Counsel, Alberta Law Reform Institute

Report Commented On: Alberta Law Reform Institute, Alteration and Revocation of Electronic Wills, Final Report 120

PDF Version: An Electronic Change is Gonna Come: Recommendations for the Alteration and Revocation of Electronic Wills

At the end of 2023, my colleague, Matthew Mazurek, wrote a post about the use of an emoji as a valid, electronic signature and explored how that might play out in the context of electronic wills. The post coincided with the publication of the Alberta Law Reform Institute’s (ALRI) final report about the creation of electronic wills. In that report, ALRI proposed that electronic wills should be permitted in Alberta and provided recommendations for how electronic wills should be created. Specifically, we recommended that electronic wills should follow the formalities required for the creation of formal paper wills, meaning they should be:

  • readable as text,
  • signed by the testator with an electronic signature, and,
  • signed by two witnesses, who both use an electronic signature.

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Electronic Wills, Electronic Signatures, and Emojis

By: Matthew Mazurek

Report Commented On: Alberta Law Reform Institute, Creation of Electronic Wills, Final Report 119

PDF Version: Electronic Wills, Electronic Signatures, and Emojis

On October 19, 2023, the Alberta Law Reform Institute published Final Report 119, Creation of Electronic Wills. In it, we recommend that the Wills and Succession Act, SA 2010, c W-12.2 (WSA) should explicitly permit electronic wills. To do this, the rules for the creation of electronic wills should largely mirror the formalities for a paper will. These formalities have been in use for centuries and seem to suffice for our probate system. The traditional wills formalities can be used in the electronic medium. In fact, similar formalities have been used in the electronic medium in other legal contexts. More specifically, we recommend that formal electronic wills should be:

  • readable as electronic text;
  • signed by the testator using an electronic signature; and
  • signed by two witnesses, who are both present at the same time for the testator’s signature, using an electronic signature.

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Reforming Family Maintenance and Support for Children: Bridging Gaps, or Unduly Restricting Testamentary Freedom?

By: Matthew Mazurek

 PDF Version: Reforming Family Maintenance and Support for Children: Bridging Gaps, or Unduly Restricting Testamentary Freedom?

Report Commented On: Alberta Law Reform Institute, Family Maintenance and Support from the Estate of a Person Who Stood in the Place of a Parent, Report for Discussion 34 (3 November 2020)

ALRI is seeking feedback on Report for Discussion 34 before making final recommendations. Anyone can give feedback by completing a short survey before January 31, 2021.

When a second family in Alberta separates, a child may seek support from a person who stands in the place of a parent under the Family Law Act, SA 2003, c F-4.5. However, when a person who stands in the place of a parent dies in an intact second family, a child in need is prevented from seeking support from that person’s estate under the Wills and Succession Act, SA 2010, c W-12.2 (WSA). From a child’s perspective, there is little difference between a parent and a parent-like adult separating and the death of one partner. In either circumstance, the child has lost a source of emotional, intellectual, and financial support. Excluding some children in second families from accessing support while providing it to others may not make for prudent policy in today’s legal system. This is what we mean in our Report for Discussion 34 when we say that there may be a gap in the law for the purposes of support for children in Alberta. Should this difference persist in the law as a nod to the testamentary freedom of individuals? Should the gap be bridged by reform to the WSA? Report for Discussion 34 reviews the existing law, analyzes arguments for and against reform, and makes preliminary recommendations.

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Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!

By: Katherine MacKenzie

PDF Version: Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!

Legislation Commented On: Dower Act, RSA 2000, c D-15

The Alberta Law Reform Institute (ALRI) is studying whether the Dower Act should be reformed or repealed.  The project is still in its early stages, with a consultation document forthcoming in 2021. In the meantime, ALRI is seeking preliminary feedback on the Dower Act and any practical problems it may present.

Key Features of the Dower Act

The rights under the Dower Act only apply to married people (s 1(c)). The Act is intended to protect a spouse (the “dower spouse”) if the couple’s home is solely owned by the other spouse (the “owner spouse”). It applies to a “homestead”, which is a parcel of land where the owner spouse lived during the marriage (s 1(d)). The Dower Act protects the dower spouse from losing their home, either during the lifetime of the owner spouse or after the owner spouse’s death. There are two key features:

  • Consent to disposition: The owner spouse cannot dispose of a homestead without the consent of the dower spouse (s 2(1)). Disposition includes a transfer, long-term lease, or mortgage (s 1(b)). If the owner spouse disposes of a homestead without consent, they may be subject to a penalty and liable to pay damages to the dower spouse (ss 2(3), 11).
  • Life estate: The dower spouse is entitled to a life estate in the homestead after the death of the owner spouse (s 18).

The Dower Act has been part of the law of Alberta for more than 100 years, but it has not changed substantially since 1948.

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Exercising the Discretion to Allow Late Family Maintenance and Support Applications

By: Jonnette Watson Hamilton

 PDF Version: Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Case Commented On: Lamont Estate, 2020 ABQB 449 (CanLII)

A family member has a limited amount of time in which to apply to the Court of Queen’s Bench of Alberta when seeking a greater share of a deceased person’s estate than the share given to them in that person’s will or on intestacy. Under section 89(1) of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), the family member must apply within six months after the grant of probate or administration. Nevertheless, a court may allow a late application for a greater share of any part of the estate not yet distributed: section 89(2). This decision of Justice Nicholas Devlin appears to be the first time that a court has looked at what factors it should consider when exercising its discretion to allow or disallow a late application.

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