Wills and Succession Act - what's new

The  is a new law that consolidates the Wills Act, Intestate Succession Act, Survivorship Act, Dependants Relief Act and section 47 of the . It also includes changes to the , the , and the Family Law Act.

This single Act specifies how and to whom property is transferred when a person dies. It makes Alberta’s succession legislation easier to use and understand.

The  came into effect on February 1, 2012.

There are several important changes, such as:

• Abolishing the law that getting married or entering into an adult interdependent partner agreement revokes a will. Under the new Act, getting divorced or ending a relationship will revoke gifts to your 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.
  Note: The  amendments in section 117 of the new Act did not come into effect on February 1, 2012.  Further discussion with estate practitioners will take place in the upcoming months to discuss how best to transition to this new law.  Discussions will focus on what should happen to a surviving spouse's inheritance if they make a claim for matrimonial property on death.
  
• 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 (Parentelic Distribution Chart).
• 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 great-grandchildren who depend on a deceased grandparent or great-grandparent.

Surrogate Rules

Amendments to the Surrogate Rules arising out of the new Wills and Succession Act prescribe a number of new forms and introduce several procedural changes. Please see the Queen’s Printer website for the Order in Council, which includes the text of the Surrogate Rules Amendment Regulation (including forms).  Applicants are expected to comply with the amendments starting on February 1, 2012. A reasonable grace period is expected to be observed until April 30, 2012. For further information, please refer to Notice to the Profession NP#2011-05 on the Alberta Courts website.

A will that is out of date could create more problems than it solves. Laws change, personal and financial circumstances change, and new developments arise with respect to financial resources and estate planning. It is a good idea to review your will with your lawyer on a regular basis to make sure it does what you want it to do!