Wills Act, R.S.A. 2000, c. W-12
| Citation: | Wills Act, R.S.A. 2000, c. W-12 | |
| Enabled Regulation: | International Wills Registration System Regulation, Alta. Reg. 35/1997 | |
| URL: | http://www.canlii.org/ab/laws/sta/w-12/20050617/whole.html | |
| Version downloaded by CanLII on 2005-06-17 | ||
Warning: This document predates the last update of the collection. It might have been modified or omitted since this last update.
WILLS ACT
Chapter W‑12
Table of Contents
1 Definitions
2 Application of Act
Part 1
General
3 Devises
4 Will to be in writing
5 Validity of will
6 Military forces and mariners
7 Holograph will
8 Signature
9 Wills of minors
10 Appointment by will
11 Publication
12 Incompetent attesting will
13 Devise to witness
14 Attestation by creditor
15 Executor as witness
16 Revocation
17 Revocation by marriage
17.1 Revocation by entering into an adult
interdependent partner agreement
18 No revocation by presumption
19 Alteration of will
20 Revival of will
21 Subsequent conveyance
22 Will to speak from death
23 Lapsed gifts
24 Devises of land
25 General disposition
26 Gift of real property
27 Gift to “heir”
28 Words importing failure of issue
29 Devise to trustee
30 Option to purchase
31 Devise to trustee
32 Gift for charitable purpose
33 Lapse of time in devise
34,35 Lapse in gifts to children
36 Gift to illegitimate children
37 Disposition of mortgaged property
38 Undisposed residue
Part 2
Conflict of Laws
39 Wills of land and movables
40 Law in force governs
41 Change of domicile
42 Law of domicile
43 Law where land situated governs
Part 3
International Wills
44 Definitions
45 Application of Convention
46 Uniform law in effect
47 Validity under other laws
48 Authorized persons
49 Registration system
50 Agreements re registration system
51 Joint registration system
52 Disclosure of information, etc.
53 Use of registration system
54 Regulations
Schedule
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
Definitions
1 In this Act,
(a) “adult interdependent partner agreement” means an adult interdependent partner agreement as defined in the Adult Interdependent Relationships Act;
(b) “will” includes a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition.
RSA 2000 cW‑12 s1;2002 cA‑4.5 s80
Application of Act
2(1) Unless otherwise expressly provided, Parts 1 and 2 apply only to wills made on or after July 1, 1960.
(2) For the purposes of this section, a will that is re‑executed or is republished or revived by a codicil is deemed to be made at the time at which it is so re‑executed, republished or revived.
(3) The Wills Act, RSA 1955 c369, continues in force, as if unrepealed, in respect of wills made before July 1, 1960.
RSA 1980 cW‑11 s2
Part 1
General
Devises
3 A person may by will devise, bequeath or dispose of all real and personal property, whether acquired before or after making the person’s will, to which at the time of the person’s death the person is entitled either at law or in equity, including
(a) estates for another’s life, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments;
(b) contingent, executory or other future interest in real or personal property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether the testator is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will;
(c) right of entry.
RSA 1980 cW‑11 s3
Will to be in writing
4 A will is valid only when it is in writing.
RSA 1980 cW‑11 s4
Validity of will
5 Subject to sections 6 and 7, a will is not valid unless
(a) it is signed at the end or foot of it by the testator or by some other person in the testator’s presence and by the testator’s direction,
(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and
(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.
RSA 1980 cW‑11 s5
Military forces and mariners
6(1) A member of the Canadian Forces while placed on active service pursuant to the National Defence Act (Canada), or a member of any other naval, land or air force while on active service, or a mariner or a seaman when at sea or in the course of a voyage, may make a will by a writing signed by that person or by some other person in that person’s presence and by that person’s direction without any further formality or any requirement of the presence of or attestation or signature by a witness.
(2) For the purposes of this section, a certificate signed by or on behalf of an officer purporting to have custody of the records of the force in which a person was serving at the time the will was made setting out that the person was on active service at that time is sufficient proof of that fact.
(3) For the purposes of this section, if a certificate under subsection (2) is not available, a member of a naval, land or air force is deemed to be on active service after the member has taken steps under the orders of a superior officer preparatory to serving with or being attached to or seconded to a component of such a force that has been placed on active service.
RSA 1980 cW‑11 s6
Holograph will
7 A testator may make a valid will wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
RSA 1980 cW‑11 s7
Signature
8(1) Insofar as the position of the signature is concerned, a will is valid if the signature of the testator, made either by the testator or the person signing for the testator, is placed at or after or following or under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will.
(2) A will is not rendered invalid by the circumstance that
(a) the signature does not follow or is not immediately after the foot or end of the will,
(b) a blank space intervenes between the concluding words of the will and the signature,
(c) the signature is placed among the words of a testimonium clause or of a clause of attestation or follows or is after or under a clause of attestation either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness,
(d) the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature, or
(e) there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature.
(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 5, 6 or 7 or this section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made.
RSA 1980 cW‑11 s8
Wills of minors
9(1) A will made by a person who is under the age of 18 years is not valid unless at the time of making the will the person
(a) has or has had a spouse or adult interdependent partner,
(b) is a member of a component of the Canadian Forces
(i) that is referred to in the National Defence Act (Canada) as a regular force, or
(ii) while placed on active service under the National Defence Act (Canada),
or
(c) is a mariner or seaman.
(2) A certificate purporting to be signed by or on behalf of an officer having custody of the records of the force in which a person was serving at the time the will was made setting out that the person was at that time a member of a regular force or was on active service within subsection (1)(b) is sufficient proof of that fact.
(3) Notwithstanding subsection (1), a person who
(a) is under the age of 18 years,
(b) has no spouse or adult interdependent partner, and
(c) has children,
may make a valid will to the extent that that person makes a bequest, devise or other disposition to or for the benefit of any or all of those children.
(4) A person who has made a will under subsection (1) or (3) may, while under the age of 18 years, revoke the will.
RSA 2000 cW‑12 s9;2002 cA‑4.5 s80
Appointment by will
10 A will made in accordance with this Act is as to form a valid execution of a power of appointment by will, notwithstanding that it has been expressly required that a will in exercise of the power be made in some form other than that in which it is made.
RSA 1980 cW‑11 s10
Publication
11 A will made in accordance with this Act is valid without other publication.
RSA 1980 cW‑11 s11
Incompetent attesting will
12 If a person who attested a will was at the time of its execution or afterwards has become incompetent as a witness to prove its execution, the will is not on that account invalid.
RSA 1980 cW‑11 s12
Devise to witness
13(1) If a will is attested by a person to whom or to whose then spouse or adult interdependent partner a beneficial devise, bequest or other disposition or appointment of or affecting real or personal property, except charges and directions for payment of debt, is given or made in that will, the devise, bequest or other disposition or appointment is void so far only as it concerns the person so attesting, or the spouse or the adult interdependent partner or a person claiming under any of them, but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.
(2) If a will is attested by at least 2 persons who are not within subsection (1) or if no attestation is necessary, the devise, bequest or other disposition or appointment is not void under that subsection.
RSA 2000 cW‑12 s13;2002 cA‑4.5 s80
Attestation by creditor
14 If real or personal property is charged by a will with a debt and a creditor or the spouse or adult interdependent partner of a creditor whose debt is so charged attests a will, the person so attesting, notwithstanding that charge, is a competent witness to prove the execution of the will or its validity or invalidity.
RSA 2000 cW‑12 s14;2002 cA‑4.5 s80
Executor as witness
15 A person is not incompetent as a witness to prove the execution of a will or its validity or invalidity solely because the person is an executor.
RSA 1980 cW‑11 s15
Revocation
16 A will or part of a will is revoked only by
(a) the marriage of the testator, subject to section 17,
(a.1) the testator’s entering into an adult interdependent partner agreement, subject to section 17.1,
(b) another will made in accordance with this Act,
(c) a writing declaring an intention to revoke and made in accordance with the provisions of this Act governing the making of a will, or
(d) burning, tearing or otherwise destroying it by the testator or by some person in the testator’s presence and by the testator’s direction with the intention of revoking it.
RSA 2000 cW‑12 s16;2002 cA‑4.5 s80
Revocation by marriage
17 A will is revoked by the marriage of the testator except when
(a) there is a declaration in the will that it is made in contemplation of the marriage, or
(b) the will is made in exercise of a power of appointment of real or personal property that would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the testator died intestate.
RSA 1980 cW‑11 s17
Revocation by entering into an adult interdependent partner agreement
17.1 A will is revoked by the testator’s entering into an adult interdependent partner agreement except when
(a) there is a declaration in the will that it is made in contemplation of entering into an adult interdependent partner agreement, or
(b) the will is made in exercise of a power of appointment of real or personal property that would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the testator died intestate.
2002 cA‑4.5 s80
No revocation by presumption
18 A will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.
RSA 1980 cW‑11 s18
Alteration of will
19(1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect except to invalidate words or meanings that it renders no longer apparent.
(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and the subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 6 or 7, the signature of the testator, are or is made
(a) in the margin or in some other part of the will opposite or near to the alteration, or
(b) at the foot or end of or opposite to a memorandum referring to the alteration and written in some part of the will.
RSA 1980 cW‑11 s19
Revival of will
20(1) A will or part of a will that has been in any manner revoked is revived only
(a) by re‑execution of it with the required formalities, if any, or
(b) by a codicil that has been made in accordance with this Act that shows an intention to give effect to the will or part that was revoked.
(2) Except when a contrary intention is shown, if a will which has been partly revoked and afterward wholly revoked, is revived, the revival does not extend to the part that was revoked before the revocation of the whole.
RSA 1980 cW‑11 s20
Subsequent conveyance
21(1) A conveyance of or other act relating to real or personal property comprised in a devise or bequest or other disposition made or done after the making of a will does not prevent operation of the will with respect to any estate or interest in the property that the testator had power to dispose of by will at the time of the testator’s death.
(2) Except when a contrary intention appears by the will, when a testator at the time of the testator’s death has a right or chose in action or equitable estate or interest that was created by
(a) a contract entered into after the making of the will and respecting real or personal property that was comprised in a devise or bequest,
(b) a conveyance made after the making of the will and relating to real or personal property that was comprised in a devise or bequest, or
(c) any other act done after the making of the will and relating to real or personal property that was comprised in a devise or bequest,
the devisee or donee of that real or personal property takes the right or chose in action or equitable estate or interest of the testator.
RSA 1980 cW‑11 s21
Will to speak from death
22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to
(a) the real and personal property, and
(b) the right or chose in action or equitable estate or interest or the proceeds under section 21(2).
RSA 1980 cW‑11 s22
Lapsed gifts
23 Except when a contrary intention appears by the will, real or personal property or an interest in real or personal property that is comprised or intended to be comprised in a devise or bequest that fails or becomes void
(a) by reason of the death of the devisee or donee in the lifetime of the testator, or
(b) by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect,
is included in the residuary devise or bequest, if any, contained in the will.
RSA 1980 cW‑11 s23
Devises of land
24 Except when a contrary intention appears by the will, if a testator devises
(a) the testator’s land,
(b) the testator’s land in a place mentioned in the will, or in the occupation of a person mentioned in the will,
(c) land described in a general manner, or
(d) land described in a manner that would include a leasehold estate if the testator had no freehold estate that could be described in the manner used,
the devise includes the leasehold estates of the testator, or any of them to which the description extends, as well as freehold estates.
RSA 1980 cW‑11 s24
General disposition
25(1) Except when a contrary intention appears by the will, a general devise of
(a) the real property of the testator,
(b) the real property of the testator in a place mentioned in the will or in the occupation of a person mentioned in the will, or
(c) real property described in a general manner,
includes any real property, or any real property to which the description extends, that the testator has power to appoint in any manner the testator thinks proper and operates as an execution of the power.
(2) Except when a contrary intention appears by the will, a bequest of
(a) the personal property of the testator, or
(b) personal property described in a general manner,
includes any personal property, or any personal property to which the description extends, that the testator has power to appoint in any manner the testator thinks proper and operates as an execution of the power.
RSA 1980 cW‑11 s25
Gift of real property
26 Except when a contrary intention appears by the will, if real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate that the testator had power to dispose of by will in the real property.
RSA 1980 cW‑11 s26
Gift to “heir”
27 Except when a contrary intention appears by the will, if property is devised or bequeathed to the “heir” of the testator or of another person, the word “heir” means the person to whom the beneficial interest in the property would go under the law of Alberta if the testator or the other person died intestate.
RSA 1980 cW‑11 s27
Words importing failure of issue
28(1) Subject to subsection (2), in a devise or bequest of real or personal property
(a) the words
(i) “die without issue”,
(ii) “die without leaving issue”, or
(iii) “have no issue”,
or
(b) other words importing either a want or failure of issue of a person in the person’s lifetime or at the time of the person’s death or an indefinite failure of the person’s issue,
mean a want or failure of issue in the lifetime or at the time of the death of that person, and do not mean an indefinite failure of that person’s issue unless a contrary intention appears by the will.
(2) This section does not extend to cases where the import of the words defined in subsection (1) is
(a) “if no issue described in a preceding gift be born”, or
(b) “if there be no issue who live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to that issue”.
RSA 1980 cW‑11 s28
Devise to trustee
29 Except when there is devised to a trustee, expressly or by implication, an estate for a definite term of years absolute or determinable or an estate of freehold, a devise of real property to a trustee or executor passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property.
RSA 1980 cW‑11 s29
Option to purchase
30(1) Except when a contrary intention appears by the will, if a will confers a power or imposes a duty to sell real property, the power is deemed to include the power to grant an option to purchase that property, if the period within which the option may be exercised is not longer than one year from the date on which the instrument granting the option is executed.
(2) Notwithstanding section 2(1), this section applies to wills made before, on or after July 1, 1960.
RSA 1980 cW‑11 s30
Devise to trustee
31 If real property is devised to a trustee without express limitation of the estate to be taken by the trustee and the beneficial interest in the real property or in the surplus rents and profits
(a) is not given to a person for life, or
(b) is given to a person for life but the purpose of the trust may continue beyond the person’s life,
the devise vests in the trustee the fee simple or the whole of any other legal estate that the testator had power to dispose of by will in the real property and not an estate determinable when the purposes of the trust are satisfied.
RSA 1980 cW‑11 s31
Gift for charitable purpose
32(1) If a testator leaves property in trust or by outright gift for a charitable purpose that is linked conjunctively or disjunctively in the will with a non‑charitable purpose and the non‑charitable purpose is void for uncertainty or for any other cause, the charitable trust or gift is valid and operates solely for the benefit of the charitable purpose.
(2) If a testator leaves property in trust or by outright gift for a charitable purpose that is linked conjunctively or disjunctively in the will with a non‑charitable purpose, and the non‑charitable purpose is not void, the trust or gift is valid for both purposes and if the will has not divided the property among the charitable and non‑charitable purposes, the trustee or executor shall divide the property among the charitable and non‑charitable purposes according to the trustee’s or executor’s discretion.
RSA 1980 cW‑11 s32
Lapse of time in devise
33 Except when a contrary intention appears by the will, if a person to whom real property is devised for what would have been, under the law of England, an estate tail or in quasi entail
(a) dies
(i) in the lifetime of the testator,
(ii) at the same time as the testator, or
(iii) in circumstances rendering it uncertain whether that person or the testator survived the other,
and
(b) leaves issue who would inherit under the entail if that estate existed,
if any such issue are living at the time of the death of the testator, the devise does not lapse but takes effect as if the death of that person had happened immediately after the death of the testator.
RSA 1980 cW‑11 s33
Lapse in gifts to children
34(1) Except when a contrary intention appears by the will, if a person dies in the lifetime of a testator either before or after the testator makes the will and that person
(a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before that person’s death, and
(b) leaves issue, any of whom is living at the time of the death of the testator,
the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if that person had died intestate and without debts immediately after the death of the testator.
(2) This section only applies with respect to a devise or bequest in a will made on or after July 1, 1960 and before June 1, 1968.
RSA 1980 cW‑11 s34
Lapse in gifts to children
35(1) Except when a contrary intention appears by the will, if a person dies in the lifetime of a testator either before or after the testator makes the will and that person
(a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in real or personal property not determinable at or before that person’s death, and
(b) leaves issue, any of whom is living at the time of the death of the testator,
the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if that person had died intestate and without debts immediately after the death of the testator, except that the surviving spouse or adult interdependent partner of that person is not entitled to receive a preferential share as provided under section 3 of the Intestate Succession Act.
(2) This section only applies with respect to a devise or bequest in a will made on or after June 1, 1968.
RSA 2000 cW‑12 s35;2002 cA‑4.5 s80
Gift to illegitimate children
36 In the construction of a will, except when a contrary intention appears by the will, an illegitimate child shall be treated as if that child were the legitimate child of that child’s mother.
RSA 1980 cW‑11 s36
Disposition of mortgaged property
37(1) If a person dies possessed of, or entitled to, or under a general power of appointment by the person’s will disposes of, an interest in freehold or leasehold property that, at the time of the person’s death, is subject to a mortgage, and the deceased has not, by will, deed or other document, signified a contrary or other intention, the interest is, as between the different persons claiming through the deceased, primarily liable for the payment or satisfaction of the mortgage debt, and every part of the interest, according to its value, bears a proportionate part of the mortgage debt on the whole interest.
(2) A testator does not signify a contrary or other intention within subsection (1) by
(a) a general direction for the payment of debts or of all the debts of the testator out of the testator’s personal estate or the testator’s residuary real or personal estate, or the testator’s residuary real estate, or
(b) a charge of debts on that estate,
unless the testator further signifies that intention by words expressly or by necessary implication referring to all or some part of the mortgage debt.
(3) Nothing in this section affects a right of a person entitled to the mortgage debt to obtain payment or satisfaction either out of the other assets of the deceased or otherwise.
(4) In this section, “mortgage” includes an equitable mortgage, and any charge whatsoever, whether equitable, statutory or of other nature, including a lien or claim on freehold or leasehold property for unpaid purchase money, and “mortgage debt” has a meaning similarly extended.
RSA 1980 cW‑11 s37
Undisposed residue
38(1) When a person dies on or after July 1, 1960, having by will appointed a person executor, the executor is a trustee of any residue not expressly disposed of, for the person or persons, if any, who would be entitled to that residue in the event of intestacy in respect to it, unless the person so appointed executor was intended by the will to take the residue beneficially.
(2) Nothing in this section affects or prejudices a right to which the executor, if this Part had not been passed, would have been entitled, in cases where there is not a person who would be so entitled.
RSA 1980 cW‑11 s38
Part 2
Conflict of Laws
Wills of land and movables
39(1) In this Part,
(a) an interest in land includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real property or is personal property;
(b) an interest in movables includes an interest in a tangible or intangible thing other than land, and includes personal property other than an estate or interest in land.
(2) Subject to this Part, the manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in land, are governed by the law of the place where the land is situated.
(3) Subject to this Part, the manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in movables, are governed by the law of the place where the testator was domiciled at the time of the testator’s death.
RSA 1980 cW‑11 s39
Law in force governs
40 As regards the manner and formalities of making a will, so far as it relates to an interest in movables, a will made either within or outside Alberta is valid and admissible to probate if it is made in accordance with the law in force at the time of its making in the place where
(a) the will was made,
(b) the testator was domiciled when the will was made, or
(c) the testator had the testator’s domicile of origin.
RSA 1980 cW‑11 s40
Change of domicile
41 A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction.
RSA 1980 cW‑11 s41
Law of domicile
42 Nothing in this Part precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.
RSA 1980 cW‑11 s42
Law where land situated governs
43 When the value of a thing that is movable consists mainly or entirely in its use in connection with a particular parcel of land by the owner or occupier of the land, succession to an interest in the thing, under a will or on an intestacy, is governed by the law of the place where the land is situated.
RSA 1980 cW‑11 s43
Part 3
International Wills
Definitions
44 In this Part,
(a) “Convention” means the Convention Providing a Uniform Law on the Form of an International Will, a copy of which is set out in the Schedule to this Act;
(b) “international will” means a will that has been made in accordance with the rules regarding an international will set out in the Annex to the Convention;
(c) “registrar” means the person responsible for the operation and management of the registration system;
(d) “registration system” means a system for the registration, or the registration and safekeeping, of international wills established under section 49 or pursuant to an agreement entered into under section 50.
RSA 1980 cW‑11 s44
Application of Convention
45 On and after December 1, 1978, the Convention is in force in Alberta and applies to wills as the law of Alberta.
RSA 1980 cW‑11 s45
Uniform law in effect
46 On and after December 1, 1978, the uniform law on the form of an international will set out in the Annex to the Convention is law in Alberta.
RSA 1980 cW‑11 s46
Validity under other laws
47 Nothing in this Part detracts from or affects the validity of a will that is valid under the laws in force in Alberta other than this Part.
RSA 1980 cW‑11 s47
Authorized persons
48 All active members of The Law Society of Alberta are designated as persons authorized to act in connection with international wills.
RSA 1980 cW‑11 s48
Registration system
49 The Minister of Justice and Attorney General shall, in accordance with the regulations, establish a system of
(a) registration, or
(b) registration and safekeeping,
of international wills.
RSA 1980 cW‑11 s49;1994 cG‑8.5 s89
Agreements re registration system
50 With the approval of the Lieutenant Governor in Council, the Minister of Justice and Attorney General for and on behalf of Her Majesty in right of Alberta may enter into an agreement with the government of another province or territory or a Minister or official of the government of another province or territory relating to the establishment of a system of registration or registration and safekeeping of international wills for Alberta and that other province or territory, and for the joint operation of that system, or relating to the exchange of information contained in a system established under section 49 and a similar system established for that other province or territory.
RSA 1980 cW‑11 s50;1994 cG‑8.5 s89
Joint registration system
51 If a registration system is established pursuant to an agreement entered into under section 50, the Minister of Justice and Attorney General is relieved of the Minister’s obligation under section 49.
RSA 1980 cW‑11 s51;1994 cG‑8.5 s89
Disclosure of information, etc.
52(1) Information contained in the registration system concerning the international will of a testator must not be released from the system except in accordance with an agreement made under section 50 or except to a person who satisfies the registrar that
(a) the person is the testator,
(b) the person is a person who is authorized by the testator to obtain that information, or
(c) the testator is dead and the person is a proper person to have access to the information.
(2) When the registration system provides for the safekeeping of international wills, an international will of a testator deposited in the system must not be released except to a person who satisfies the registrar that
(a) the person is the testator,
(b) the person is a person who is authorized by the testator to obtain the will, or
(c) the testator is dead and the person is a proper person to have custody of the will for the purposes of the administration of the estate of the testator or the agent of such a person.
RSA 1980 cW‑11 s52
Use of registration system
53(1) If a member of The Law Society of Alberta has acted during any month in respect of one or more international wills in the member’s capacity as a person authorized to act in connection with international wills, the member shall, on or before the 10th day of the next month, file with the registrar, in a sealed envelope, a list on a form prescribed under the regulations, certified by the member or the member’s agent, setting out the name, address and description of the testator and the date of execution of each international will in respect of which the member so acted, and the registrar shall enter the information in the registration system.
(2) The failure of a member of The Law Society of Alberta to comply with subsection (1) in respect of an international will does not affect the validity of the international will.
RSA 1980 cW‑11 s53
Regulations
54 The Lieutenant Governor in Council may make regulations respecting the operation, maintenance and use of the registration system, and without limiting the generality of the foregoing, may make regulations
(a) prescribing forms for use in the system, and
(b) prescribing fees for searches of the registration system.
RSA 1980 cW‑11 s54
Schedule
Convention Providing a Uniform Law on the
Form of an International Will
The States signatory to the present Convention,
DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an “international will” which, if employed, would dispense to some extent with the search for the applicable law;
HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:
Article I
1 Each Contracting Party undertakes that not later than 6 months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.
2 Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.
3 Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.
4 Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.
Article II
1 Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.
2 The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.
Article III
The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.
Article IV
The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.
Article V
1 The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.
2 Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.
Article VI
1 The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.
2 Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.
Article VII
The safekeeping of an international will shall be governed by the law under which the authorized person was designated.
Article VIII
No reservation shall be admitted to this Convention or to its Annex.
Article IX
1 The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.
2 The Convention shall be subject to ratification.
3 Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.
Article X
1 The Convention shall be open indefinitely for accession.
2 Instruments of accession shall be deposited with the Depositary Government.
Article XI
1 The present Convention shall enter into force 6 months after the date of deposit of the 5th instrument of ratification or accession with the Depositary Government.
2 In the case of each State which ratifies this Convention or accedes to it after the 5th instrument of ratification or accession has been deposited, this Convention shall enter into force 6 months after the deposit of its own instrument of ratification or accession.
Article XII
1 Any Contracting Party may denounce this Convention by written notification to the Depositary Government.
2 Such denunciation shall take effect 12 months from the date on which the Depositary Government has received the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.
Article XIII
1 Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.
2 Such declaration shall have effect 6 months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.
3 Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.
Article XIV
1 If a State has 2 or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.
2 These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.
Article XV
If a Contracting Party has 2 or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.
Article XVI
1 The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.
2 The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:
(a) any signature;
(b) the deposit of any instrument of ratification or accession;
(c) any date on which this Convention enters into force in accordance with Article XI;
(d) any communication received in accordance with Article I, paragraph 4;
(e) any notice received in accordance with Article II, paragraph 2;
(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;
(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;
(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.
Annex
Uniform Law on the Form of an International Will
Article 1
1 A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.
2 The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
Article 2
This law shall not apply to the form of testamentary dispositions made by 2 or more persons in one instrument.
Article 3
1 The will shall be made in writing.
2 It need not be written by the testator himself.
3 It may be written in any language, by hand or by any other means.
Article 4
1 The testator shall declare in the presence of 2 witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
2 The testator need not inform the witnesses, or the authorized person, of the contents of the will.
Article 5
1 In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
2 When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will.