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The Creation of Wills

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The Creation of Wills ALBERTA LAW REFORM INSTITUTE EDMONTON, ALBERTA THE CREATION OF WILLS Report for Discussion No. 20 September 2007 ISSN 0834-9037 ISBN 1-8906078-37-0 INVITATION TO COMMENT This Report for Discussion by the Alberta Law Reform Institute addresses a number of issues regarding the creation of wills and recommends tentative proposals for reforming the law in this area. The purpose of issuing a Report for Discussion is to allow interested persons the opportunity to consider these proposals and to make their views known to ALRI. Any comments sent to us will be considered when the ALRI Board makes final recommendations. The deadline for comments on the issues raised in this Report for Discussion is December 15, 2007. You can reach us with your comments by mail, fax or e-mail to: Alberta Law Reform Institute 402 Law Centre University of Alberta Edmonton AB T6G 2H5 Phone: (780) 492-5291 Fax: (780) 492-1790 E-mail: [email protected] Law reform is a public process. ALRI assumes that comments on this Report for Discussion are not confidential. ALRI may quote from or refer to your comments in whole or in part and may attribute them to you, although we usually discuss comments generally and without attribution. If you would like your comments to be treated confidentially, you may request confidentiality in your response or may submit comments anonymously. Table of Contents ABOUT THE ALBERTA LAW REFORM INSTITUTE ........................ i ACKNOWLEDGMENTS ................................................. iii EXECUTIVE SUMMARY ..................................................v TABLE OF ABBREVIATIONS ............................................ xi LIST OF RECOMMENDATIONS .........................................xv CHAPTER 1. INTRODUCTION ...........................................1 A. The Wills Act in Alberta..............................................1 B. The Succession Project..............................................2 C. Document Plan ....................................................3 D. Dispensing Power..................................................3 CHAPTER 2. TESTAMENTARY CAPACITY OF MINORS .................7 A. Introduction.......................................................7 B. Court Declaration of Testamentary Capacity . 8 C. Recommendations for Reform........................................13 1. Lower the age of testamentary capacity . 13 a. Making a will at 16 years...............................13 b. Married or partnered minor exception . 17 c. Minor parent exception ................................18 2. Alternative recommendations: Retain the age of testamentary capacity at 18 years ............................................19 a. Minor spouses, partners and parents . 19 b. Court declaration of testamentary capacity . 20 c. Limited or general grant of testamentary capacity? . 20 CHAPTER 3. STATUTORY WILLS FOR PERSONS WITHOUT TESTAMENTARY CAPACITY .....................................23 A. Introduction......................................................23 B. Circumstances Addressed by Statutory Wills . 24 C. Statutory Wills in England...........................................26 D. Statutory Wills in Australia..........................................30 E. Statutory Wills in New Zealand.......................................34 F. Statutory Wills in Canada (New Brunswick) . 36 G. Is There a Need for Reform in Alberta? . 38 CHAPTER 4. ORAL WILLS AND ELECTRONIC WILLS ..................41 A. Introduction......................................................41 B. Oral Wills .......................................................41 C. Electronic Wills...................................................43 1. What is an electronic will? ....................................43 2. Valid in its own right?........................................44 3. Valid under the dispensing power? . 48 CHAPTER 5. PRIVILEGED WILLS ......................................55 A. Introduction......................................................55 B. Privileged Wills in Alberta...........................................56 C. Privileged Wills in Other Jurisdictions . 57 1. Canada...................................................57 2. Australia..................................................60 3. New Zealand...............................................61 4. United States ..............................................61 D. Should Privileged Wills Be Abolished? . 62 1. Introduction................................................62 2. Members of Canadian Forces on active service . 63 3. Mariners and seamen........................................65 4. Recommendations for reform..................................67 5. Testamentary capacity of minors in the Canadian Forces . 68 CHAPTER 6. HOLOGRAPH WILLS .....................................71 A. Are Holograph Wills Still Needed?.....................................71 1. Introduction................................................71 2. The law in other jurisdictions ..................................72 3. Why might reform be needed?.................................73 4. New developments affecting holograph wills . 75 a. Printed will forms .....................................75 b. Decline of handwriting.................................75 c. General dispensing power ..............................76 5. Is reform needed?...........................................76 B. Is the “Handwriting” Requirement Too Narrow? . 78 1. Introduction................................................78 2. The law in Canada and other jurisdictions . 78 3. Recommendation for reform...................................80 C. The Problem of Printed Wills Forms ...................................81 1. Introduction................................................81 2. The law outside Alberta ......................................82 3. Reform options.............................................84 a. Prohibit printed will forms...............................84 b. Delete the requirement of being “wholly” in the testator’s handwriting......................................85 c. Enact a specific provision to address the problem . 85 i. The “partly” approach............................85 ii. The “material portions” approach . 86 iii. Advantages and disadvantages of having a specific statutory provision..........................87 d. Rely on a general dispensing power . 88 4. Recommendation for reform...................................89 CHAPTER 7. WILL FORMALITIES ......................................91 A. Introduction......................................................91 B. Placement of Testator’s Signature ....................................91 1. Introduction................................................91 2. The law in Canada and other jurisdictions . 92 a. Canada.............................................92 b. England, Australia and New Zealand . 94 3. Reform issues..............................................95 a. Must a will be signed at its end or foot? . 95 b. Specific saving provision, general dispensing power, or both? . 97 c. Testator’s intention apparent on the face of the will? . 98 4. Recommendation for reform...................................99 C. Number of Witnesses.............................................100 D. Concurrent Presence of Witnesses When the Testator Signs the Will . 101 1. Introduction...............................................101 2. The law in Canada and other jurisdictions . 103 3. Recommendations by other law reform agencies . 104 4. Role of dispensing power ....................................106 5. Recommendation for reform..................................107 E. Publication of Wills ...............................................108 1. Introduction...............................................108 2. The law in Canada and other jurisdictions . 109 3. Reform issues.............................................109 a. Repeal?............................................109 b. Update the language?.................................110 4. Recommendation for reform..................................111 CHAPTER 8. WITNESSES TO A WILL ................................113 A. Incompetent Witnesses ...........................................113 1. Introduction...............................................113 2. History and purpose of Section 12 . 114 3. The law in Canada and other jurisdictions . 114 a. Canada............................................114 b. England, Australia and New Zealand . 115 c. United States.......................................115 4. Reform issues and recommendations . 116 a. Retain or repeal?.....................................116 b. Specify witness qualifications? . 118 c. Specify witness disqualifications? . 119 i. Blind people ..................................119 ii. Other disqualifications..........................121 B. The Witness-Beneficiary Rule.......................................122 1. Introduction...............................................122 2. History and purpose of the section . 123 3. The law in Canada and other jurisdictions . 124 a. Canada............................................124 b. England............................................125 c. Australia...........................................125 d. New Zealand .......................................126 e. United States.......................................127 4. Reform Issues and recommendations . 127 a. Retain or repeal?.....................................127 b. Remove spousal disqualification? . 132 c. Miscellaneous options for amelioration . 134 i. An exception for small gifts . 134
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