The Advisory: Volume 10, Issue 1, January 2012
Wills and Succession Act: What’s New?
This Wills and Succession Act is a new law that consolidates the Wills Act, Intestate Succession Act, Survivorship Act, Dependents Relief Act and section 47 of the Trustee Act. It also includes changes to the Matrimonial Property Act, the Administration of Estates Act, and the Family Law Act.
This single Act specifies how and whom property is transferred when a person dies. It makes Alberta’s succession legislation easier to use and understand.
This legislation was passed by the legislature in December 2010; it will come into force on February 1, 2012. The proclamation of section 117 of the Wills and Succession Act, which deals with matrimonial property on death, will be delayed pending further discussion with the bar. This delay will provide interested Alberta lawyers the opportunity for further input into the issue of inheritance rights when there is a matrimonial property claim.
Important changes to the Act include:
- Abolishing the law that getting married revokes a will. Under the new Act, getting divorced or ending a relationship will revoke gifts to an ex-spouse or adult interdependent partner.
- Ensuring spouses and partners have a temporary place to live when their spouse or partner dies if they do not already own the property.
- If they own less than their share of the couple’s matrimonial property, a surviving spouse may claim the value of his or her share from the estate of the spouse, on the death of their spouse. They do not need to be divorced or separated to make this claim.
- If two or more people die at or around the same time, the property is distributed as if each person died before the other. Previously, if two or more people died at about the same time, for property distribution purposes, the youngest was deemed to have survived.
- The admission of extrinsic evidence (i.e. evidence which is not contained in the document itself) is permitted in interpreting a will. The court may admit corroborated outside evidence, including evidence to help prove the deceased’s intention.
- If there is no will and a person leaves both a spouse/partner and children of the relationship with that spouse/partner, everything goes to the spouse/partner, instead of being shared between the spouse/partner and children.
- If there is no immediate family and no will, the rules have changed with respect to the ultimate distribution of an estate.
- Family members can apply for support from the deceased’s estate. Family members previously included spouses, partners, children under age 18 and children over age 18 who by reason of physical or mental disability are unable to earn a livelihood. Under the new Act, family members will also include adult children under age 22 who are full-time students, and minor grandchildren or greatgrandchildren who depend on a deceased grandparent or great-grandparent.
Further information about the new Act and detailed amendments to sections of the Act can be found at www.justice.alberta.ca/wills. To obtain a copy of the Act, visit the Alberta Queen’s Printer website at www.qp.alberta.ca.
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