The Last Will and Testament of a person is a very important document. As your Will is of great importance, and as erroneous or sloppy wording may result in bequests not going to the persons you wish, and as there are strict formalities that need to be observed, a Will should be prepared and signed with a lawyer. The cost of having a Will done properly is a bargain given the potential downside. If the wording in your Will is wrong or unclear you won’t be around to explain what you meant. If what you wanted is different than that which a strict reading of the Will indicates, other evidence (i.e. what you told someone) won’t be admissible by a Court to change what is written. A hand written Will (Holograph) may be valid in Alberta but those Wills and Wills prepared from Will kits often create problems that could have been prevented if the Will had been drafted correctly.
WHAT A WILL SHOULD CONTAIN
- Proper and full name of Testator(person making the Will)
- Name of Executor and alternate if the first person named is dead or unable to act.
- Name of Guardian if you have minor children
- Beneficiaries and alternate beneficiaries
- Trust provisions for minor children or other individuals in special circumstances
A common form of Will has persons naming their spouse or partner as executor with a parent, sibling, or child as alternate. The spouse is named as beneficiary with the children as alternate beneficiaries. A relative or friend is named as a guardian of minor children. Funds are to be held in trust and used for minor children until they reach 21 years. For young families there should be a provision for beneficiaries in the event something happens to you, your spouse, and children. Fortunately this is very rare but it should be dealt with in the Will.
With some exceptions you can leave your property to whomever you choose. You cannot ignore rights of a spouse or dependent children who have a claim on you for support. Others may claim that there was an agreement or some acts that took place that give them the right to a claim on your estate. A Will can be attacked if the mental capacity of the Testator when he or she made the Will is in doubt.
POWER OF ATTORNEY
In a Power of Attorney you name a person to act on your behalf on financial and property matters if you become incapacitated through a stroke, brain injury,dementia, or other reason. This person is called your “Attorney”- don’t confuse that function with a Lawyer (for those watching too many American TV shows). Other provinces and States have different names for similar positions. This document may be effective immediately or you can set out the conditions that must be met before it comes into effect. These documents can eliminate the need for very expensive Court applications to have a Trustee appointed by the Court if someone becomes disabled and has not signed such a document.
As with a Will you should name a close relative or friend as your Attorney and provide for an alternate if that person cannot act.
You may set out instructions and directions in this document on what steps your attorney can and cannot do with your property. The lawyer should also either be preparing or reviewing your Will when doing this document to make sure they are compatible.
PERSONAL DIRECTIVE
In a Personal Directive you name a person to act on your behalf to make personal care and health care decisions if you become incapacitated through a stroke, brain injury, dementia, or other reason. This person is called your “:Agent”. Other provinces and States have different names for similar positions. The Personal Directives Act of Alberta sets out that a Personal directive is in effect when your Agent and a Doctor decide that you can’t make a certain condition. Your capacity is to be continually assessed to ensure that you have and do make your own decisions whenever possible.
These documents can eliminate the need for very expensive Court applications to have a Guardian appointed by the Court if someone becomes disabled and has not signed such a document.
As with a Will you should name a close relative or friend as your Agent and provide for an alternate if that person cannot act.
SUPPORTED CARE DECISION-A recent legislative change allows someone to name up to three people who can assist him or her in making decisions. While not turning over the decision making power to the persons named they have the right to assist in getting information and in communication with health and other professionals. This can be very helpful in situations where someone needs assistance in dealing with medical professionals but the professionals may feel bound not to talk to a person other than the patient because of Privacy legislation.