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Wills and Intestasy

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The following requisites to the making of a valid will are necessary in all the Provinces of Canada. No person under twenty-one years of age can make a valid will.

No imbecile, insane or interdicted person can make a valid will.

The testator must be of a sound mind.

All wills must be signed at the end of the will by the testator.

All wills must be in writing. By "writing" is meant either print, handwriting, typewriting, etc., and is used to express that a will cannot be oral.

Two or more persons cannot make a will by one and the same act.

There are three forms of wills: The notarial or authentic; the English form and the holograph will. The latter is only valid in Manitoba or Quebec.

The notarial or authentic form is executed before two notaries or one notary and two other witnesses, neither of whom shall be clerk or servant to the notary, the testator in their presence and with them signs the will, or declares he cannot do so after it has been read to him by one of the notaries in the presence of the other, or by the notary in the presence of the other witnesses. Mention is made in the will of the observance of the formalities. The date and place of its execution must be stated in the will. Witnesses must be named and described in the will. They must be of the male sex and of full age.

A will cannot be executed before notaries who are related or allied to the testator or to each other in the direct line, or in the degree of brothers, uncles, or nephews.

The original will remains with the notary and needs no probate. Cannot be dictated by signs.

Wills made in the form derived from the laws of England, whether they affect moveable or immoveable property, must be in writing and signed at the end with the signature or mark of the testator made by himself or by another for him in his presence and under his express direction, which signature is then or subsequently acknowledged by the testator as having been subscribed by him to his will then produced, in presence of at least two competent witnesses together, who attest and sign the will immediately in the presence of each other and of the testator and at his request.

Females may serve as attesting witnesses and the rules concerning the competency of witnesses are the same in all other respects as for will in authentic form.

Holograph will must be wholly written and signed by the testator and require neither notaries or witnesses. They are subject to no particular form.

In holograph wills and wills made in the form derived from the laws of England, whatever comes after the signature of the testator is looked upon as a new act, which in the former case must likewise be written and signed by the testator. In the latter case the attestation of witnesses must follow each signature or come after the last as witnessing the whole of the will preceding such signatures with the same formalities as the original will.

Subsequent wills which do not revoke the preceding ones in an express manner annul only such dispositions therein as are inconsistent with or contrary to those contained in the latter wills.

An heir accepting inheritance makes himself liable for his share of debts due by the estate. The taking into his possession as heir by an heir of anything belonging to the estate makes an acceptance.

Any one witnessing a will bars his or her right to any bequest in that will and nullifies any legacy lift to the wife or husband of the witness.

Alberta and Saskatchewan (41)

No holograph form of will valid in Alberta and Saskatchewan. The laws relating to the descent of real and personal property are the same. A married woman is as free to dispose of her property by will as a man.

Ord. 13, 1901. A man dying intestate leaving no issue the whole of his property goes to his widow provided that prior to his death such widow had not left him and lived in adultery. If issue, one-third to widow, balance to issue in equal shares. If no widow, or issue, or their representatives, the father if living takes the whole. If no widow, no issue or their representatives and no father living the mother takes the whole.

Sec. 3. An illegitimate child inherits equally with a legitimate child the property of a mother dying intestate.

Sec. 4. An illegitimate child dying intestate and leaving no issue the mother is heir.

 
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