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Sunday, June 5, 2011

Alberta's new Wills and Succession Act - part 3

Alberta's new law is scheduled to come into effect very early in 2012. Everyone (including me) is doing his or her best to get up to speed on the changes this law is bringing with it.

I've made a couple of posts on the changes so far, and will continue to make several more as there is quite a bit of material to cover. Today I'd like to look at the situation in which a husband and wife die in a common accident and it's not possible to tell which of them died first. The question is about who would inherit their property.

As most couples, whether legally married or common law, hold their homes as joint tenants with a right of survivorship, let's assume that our fictitious couple, Harry and Sally, hold their home that way. There is an accident and both of them are killed. Harry was two years older than Sally. They don't have children.

Under the current law, Sally is deemed to have survived Harry because she was younger. This would mean that Sally would be the surviving joint tenant of the property. The house would be transferred into her name, and dealt with under her estate. Unless Sally had a will leaving something to Harry's side of the family, everything would go to her family and Harry's side wouldn't receive anything.

This is going to be completely different under the new law.

The new law is going to say that if a couple dies in the same accident, they are both deemed to have died before each other. That's a physcial impossibility of course, but we lawyers don't mind that! Now a joint property with right of survivorship will be split (on the simultaneous death of both of them) into a tenants-in-common title, with one half going to each of Harry's and Sally's estates.

This seems like a sensible and fair approach. As it's going to be new for everyone from the probate judge to the lawyers to the Land Titles Office, it might be a bit bumpy for the first few weeks, but once it's running smoothly it should end up being beneficial to many families.


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