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Monday, March 15, 2010

How do I know if the Will I've found is valid?

If you are the executor for your parent or another person who has passed away, you have probably searched the house for the person's Will. This is essential, as the Will describes for you what you will have to do with the estate.

What if you've found a Will tucked away among the deceased's household papers but you are not sure whether it's a valid Will or not? How do you know whether this is the Will that has to be probated? The points below will help you decide, but please remember that the final decision about whether a Will is valid or not is up to a Justice of the Queen's Bench of Alberta.

Here are some things to look for:

Is the Will written down? If it is videotaped, or if it is merely a series of items with names written on the backs of them, these are not valid.

Does the Will appear to be an original, as opposed to a photocopy? You can usually tell by the colour of the ink used in the signatures. If everything is in black ink, look for slight indentations of the page where it is signed.

Are all of the pages there? If the pages aren't numbered, try reading the last part of each page to see if it leads into the beginning of the next page.

Is the Will dated? Most are dated on the last page, right above the signature. A few are dated on the top of the first page, in the first or second line of the Will. If you have found more than one possible Will, the most recent one is the valid one, but don't destroy the old one. Note that Wills don't expire, no matter how old they get.

Is the Will signed? Normally the Will is signed at the end by the testator (the person whose Will it is), and initialled on each page by the testator. You might find that the names on the signature lines are not really signatures, but are printed and possibly in quotation marks. If so, you have a "trued up" copy of a Will, and the chances are very good that the copy was trued up by a lawyer's office who will have the original Will.

Is the Will witnessed? On the signature page (usually the last page), in addition to the testator's signature, you should see the signatures of two witnesses. If the Will is a handwritten Will (known as a holograph Will) it does not need any witnesses.

You might find that the Will was witnessed by someone who should not have witnessed, such as a beneficiary under the Will. For your purposes in deciding whether the Will is valid, don't worry about that right now. A mistake in witnessing doesn't necessarily mean the whole Will is invalid. Your best bet is to consult an estates lawyer who will help you work with any problems the Will might present.

Has the testator crossed things out of the Will or added things in handwriting? This is a tough one. It is not likely that the things added in handwriting will be considered valid. However, it could well be that the Will itself is valid, even if the additions and deletions are not.

If the Will is in an envelope that at one time was sealed and now it is opened, that does not invalidate the Will in any way.

You may already know that to take a Will to probate, there has to be an affidavit attached that is signed by one of the witnesses. If that affiavit is not attached, that does not invalidate the Will. The Rules of Court allow for that affidavit to be attached at any time after the Will is made, including after the testator has passed away.

If you've found a Will that you have any question about, you should take that Will to an experienced lawyer and ask for an opinion about whether it's valid. An executor has an obligation to present whatever valid Will is found.

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