This report recommends that Alberta courts be given power to admit to probate a will or an alteration, revocation or revival of a will that does not comply with the formalities prescribed by the Wills Act. This “dispensing power” could only be exercised if a court is satisfied by clear and convincing evidence that the testator intended to adopt the document as a will, alteration, revocation or revival. The only formal requirement that could not be dispensed with in a proper case would be writing. Electronic records could not be admitted to probate. The invalidation of wills because of failures to comply strictly with formalities has been seen as unjust in many places. Strict compliance with the formalities helps to show that a will is an authentic expression of a testator’s testamentary wishes, but it is not the only way in which authenticity can be shown. This report recommends the enactment of a dispensing power provision as such a power that will enable courts to give effect to testators’ wishes in cases in which they must now refuse to do so. Testators will still have good reason to comply strictly with the formalizes as failure to do so will increase the risk that a will will be rejected and expose the estate to substantial additional legal costs. This report also recommends that the Wills Act be amended to provide that a will is not revoked by marriage if there is clear and convincing evidence that the testator made it in contemplation of the marriage. Draft legislation is provided.
Final Report
Back to Publication SearchWills: Non-Compliance with Formalities, Final Report 84
Resource Details
Publication No: | 84 |
FORMAT: | Publications |
TAGS: | armed forces, exclusion, formality, holograph, international, probate, will |
FILE: | fr084.pdf |