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Understanding the Impact of the Wills and Succession Act

As of February 1, 2012, the Wills and Succession Act governs succession and estate administration in Alberta. The Wills and Succession Act significantly streamlined and updated the regulations governing wills, intestate succession, and estate planning.

This article will consider the impact of the Alberta Wills and Succession Act on your Will and estate plan, whether you have drafted one before or haven’t done so yet.

How It Affects New Marriage or Cohabitation on Wills

New marriage or an adult interdependent partner (AIP) relationship does not revoke a Will under the Alberta Wills and Succession Act unless the Will expressly indicates otherwise. 

AIPs have either entered into an AIP agreement or cohabited in an interdependent relationship for some time and had a child from the relationship, or have cohabited for at least three years but have no children from the connection.

How It Affects Divorce or Separation on Wills

The Wills and Succession Act presumes that an ex-spouse or former Adult Interdependent Partner survived the Will maker unless the Will maker expresses a contrary purpose. 

As a result, the former spouse or AIP is ineligible to accept gifts from the Will or serve as an Executor or Trustee. The appointment as a Guardian for Minors will be cancelled as well. 

The beneficiary designations must be changed to prevent the ex-spouse or former AIP from obtaining the asset.

It’s worth noting that the separation of married spouses for whatever length of time has no bearing on a Will until the divorce is finalized. If the deceased does not leave a Will, a lawfully married spouse who has been separated for more than two years is disinherited. 

Let’s say a wife dies, and it comes out that she and her husband were separated for three years before her death but never divorced. The gift to the husband remains lawful if the woman had an old Will that left everything to the husband. The spouse would not receive anything if there were no Will. 

For further information on these cases, it is best to seek the help of divorce lawyers.

How Estates Are Distributed in Case of Intestacy

Suppose a person dies in Alberta without a Will and leaves a spouse (or AIP), and all of the deceased’s children come from that relationship. In that case, the whole estate goes to that spouse or AIP rather than being divided among the spouse (or AIP) and the children. 

The Wills and Succession Act assumes that the decedent wants to leave everything to their spouse (or AIP) and that the spouse (or AIP) will care for the children. 

Suppose a person dies intestate, leaving a common-law spouse and a financially independent adult child in common. The common-law spouse is entitled to the deceased’s whole fortune under the Alberta Wills and Succession Act.

Assume the deceased died without a Will and had a spouse or an AIP and children from a previous relationship when they passed. In this scenario, the husband or AIP is entitled to a preferred part of the inheritance. 

The balance of the inheritance is divided among the children. The preference share equals the greater of $150,000 or half of the deceased’s net estate.

If the deceased leaves both a spouse and an AIP, they divide the preference share, with the remainder going to the children, or if there are no children, the spouse and AIP split the estate equally. 

Consider the case of a person who died without a Will, leaving behind a spouse and a child from a prior relationship. Assume that his estate is worth $200,000 in total. The spouse will receive $150,000, and the kid will receive $50,000, according to the Alberta Wills and Succession Act.

Conclusion

The Alberta Wills and Succession Act is a significant piece of legislation that significantly impacts your estate plan, particularly if you are married, unmarried with a partner, or share mutual assets with a partner.

Are you in need of Calgary financial mediation? Alberta Divorce Finances can help you understand and plan your finances for your divorce. Give us a call to learn more.