The Creation of Wills
This report makes a number of recommendations to reform the Wills Act. It recommends that Alberta courts be given the power to validate a will or an alteration, revocation or revival of a will even if it does not comply with the formalities prescribed by the Wills Act. It also recommends that the age of testamentary capacity remain the same as the age of majority (18 years) so that a minor cannot make a valid will. People may possess and then lose testamentary capacity, either temporarily or permanently, due to any number of conditions. In Alberta, a substitute decision maker for a person who lacks testamentary capacity is not allowed to make, alter or revoke a will on behalf of that person. It is recommended that courts not have the power to make statutory wills for persons lacking testamentary capacity. No change is recommended to the current law which recognizes only written wills. Oral wills should not be valid either in their own right or under the dispensing power. It is recommended that exempt wills should continue to be available under Alberta law. A statutory provision allowing exempt wills provides guaranteed validity for such wills. It is recommended that the Wills Act authorize holograph wills made in the testator’s “own writing,” defined as “handwriting, footwriting, mouthwriting, or writing of a similar kind.” The current requirement of “handwriting” is too narrow and could be viewed as discriminatory. It is recommended retaining the tradition statutory requirement that a will must be signed at its “end or foot,” subject to a saving provision to alleviate some of the main problems arising from a strict interpretation. It is also recommended retaining the saving provision of the Wills Act, which validates wills signed by an incompetent witness.