Two Wills Found After a Death in Alberta: Which One Counts?

Finding a second will after a death is unsettling, especially when the two documents say different things. Families often assume the newest one wins, or that the one a lawyer prepared wins. The law is a little more careful than that.

This article explains in plain words how a will is revoked in Alberta, why dates matter but are not the whole story, and how the Court of King's Bench can decide the question if the family cannot agree.

This article covers the law of Alberta.

How a will is revoked in Alberta

Under the Wills and Succession Act, a will or part of a will may be revoked only in limited ways. Those ways are making another will, making a writing that revokes it and meets the Act's requirements, or destroying it with intent to revoke, or having it destroyed at the testator's direction and in their presence.

Marriage or entering an adult interdependent partner agreement does not revoke a will, except as section 25(1) provides. So a later life event alone does not usually cancel an older will.

Why the second will may or may not replace the first

A later will can revoke an earlier one, but only if it is itself a valid will. Whether it actually does revoke the earlier will depends on its wording and on whether it was properly made, so the date is only one piece of the puzzle.

A will must generally be in writing and signed or acknowledged in front of 2 witnesses who are present at the same time, with each witness signing in the testator's presence. A holograph will is an exception: it must be wholly in the testator's own handwriting and signed, and needs no witnesses. A member of the armed forces on active service may also make a will without witnesses or other formalities.

The person making the will must also have had the mental capacity to do so. A will that fails the formalities is open to challenge as invalid.

• Was each document properly signed and witnessed, or properly handwritten and signed?
• Did the person have mental capacity when each was made?
• Does the later document say it revokes earlier wills, or does it only add to them? Its exact wording matters.
• Was the earlier will destroyed on purpose, or lost or damaged by accident?

Handwriting, markings and changes on a will

Sometimes the second document is not a new will but a copy of the first with notes written on it. Any writing, marking or obliteration on a will is presumed to have been made after the will was made. A change is valid only if it meets the formal requirements for a witnessed or holograph will, or if the Court validates it.

If a will contains a genuine mistake, such as an accidental slip, omission or misdescription, the Court may rectify it by adding or deleting words, but only on clear and convincing evidence. That application generally may not be made more than 6 months after the grant of probate or administration is issued, unless the Court extends the period.

How the Court decides which will counts

If the family cannot agree, a personal representative or a person interested in the estate may apply for formal proof of a will, also called proof in solemn form. On that application the Court may decide which will is admitted to probate and whether the person died with a will or without one. It may also end a Part 1 grant or a personal representative's appointment, and direct costs.

Filing the application stays a Part 1 (non-contentious) application, and while it is pending a personal representative under a Part 1 grant may not distribute estate property unless the Court approves or all interested persons consent. People who count as interested include a surviving spouse or adult interdependent partner, adult children, heirs on an intestacy, and beneficiaries and personal representatives under the will in question.

The person who took instructions for a will can be required to give evidence about the instructions, how the will was prepared and signed, and the steps taken to assess capacity. A grant issued after the Court's decision binds all persons, absent fraud, and an appeal goes to the Court of Appeal.

What to do next

• Keep every document exactly as found, including envelopes and any copies, and do not write on them or throw anything away.
• Note where and when each document was found and who has handled it.
• Find out whether an original of each will exists. If an original is lost or destroyed, an interested person generally must apply under rule 75 unless the Court orders otherwise or another exception applies.
• Once a formal-proof application is filed, a personal representative under a Part 1 grant may not distribute estate property while it is pending unless the Court approves or all interested persons consent, and a personal representative generally cannot distribute for six months after the grant unless the Court orders otherwise or family members consent.
• Speak with an Alberta lawyer promptly, because some deadlines run from the date of the grant.

Frequently asked questions