What Happens If There Are Two Wills in Alberta?

Finding a second will after someone dies is unsettling, especially when it changes who benefits. Families often wonder whether the newer document automatically wins, or whether the older one still counts.

This article explains how revocation works in Alberta, what to make of marks and changes on a will, and how the Court sorts out competing documents. Each situation turns on its own facts, so a lawyer should look at the actual wills.

This article covers the law of Alberta.

How a will is revoked

A will or part of a will may be revoked only in particular ways: by making another will, by a compliant writing that revokes it, or by destroying it with intent to revoke (or at the testator's direction and in their presence). Marriage or entering an adult interdependent partner agreement does not revoke a will, except as s 25(1) provides.

That means the question is not simply which will is newer. The wording of the later document, and whether it was valid, both matter. Whether a later will fully replaces an earlier one or only changes part of it depends on what it says.

Is each will valid?

A later will can only do its work if it is itself valid. An adult may make, alter or revoke a will only with mental capacity. A formal will must be in writing and signed or acknowledged in front of 2 witnesses present at the same time, each signing in the testator's presence. A holograph will, wholly in the testator's own handwriting and signed, needs no witnesses.

• Another person may sign for the testator at the testator's direction and in their presence, but that person cannot also witness the signature.
• A witness must have the mental capacity to witness.
• A gift to a witness, or to a witness's spouse or adult interdependent partner, is void as against that person, with exceptions.

Marks, changes and crossed-out words

Sometimes the second document is not a new will but handwriting on the first. Any writing, marking or obliteration on a will is presumed to have been made after the will was made. An alteration is valid only if it meets the formal requirements for a witnessed or holograph will, or the Court validates it under s 38.

Where a will has a mistake rather than a competing version, the Court may rectify it by adding or deleting words on clear and convincing evidence of an accidental slip, omission or misdescription, or a failure to carry out instructions. This must generally be applied for within 6 months after the grant, unless the Court extends the period.

How the Court decides which will governs

If the wills cannot be reconciled, an interested person or a personal representative may apply for formal proof of a will. Interested persons include the surviving spouse or adult interdependent partner, adult children, heirs on intestacy, and personal representatives and beneficiaries under the will in question or under a prior grant for it. On the application, the Court may decide which will is admitted to probate, or whether the deceased died with or without a will.

Filing the application stays a Part 1 application, and a personal representative under a Part 1 grant generally cannot distribute estate property while it is pending unless the Court approves or all interested persons consent. The hearing is generally a trial, and the person who took instructions for a will can be compelled to testify about instructions, preparation, signing and capacity steps. A grant issued after the decision binds all persons, absent fraud, and appeal lies to the Court of Appeal.

When the original is missing, and what to do next

If an original will is lost or destroyed, an interested person must apply for formal proof unless s 40 of the Alberta Evidence Act applies or the Court orders otherwise. A missing original is not the same as a revoked will, so do not assume it was cancelled.

• Do not alter, mark or throw away any document you find.
• Record where and when each will was found and who has the original.
• Note the dates and who witnessed each document.
• Check whether a grant has already been issued.
• Ask a lawyer before anyone applies for a grant or distributes property.

Costs can follow the result. A successful party is generally entitled to costs from the unsuccessful party, and the Court may penalize a person who required formal proof if the application was frivolous or vexatious, caused undue delay or had no substantial basis.

Frequently asked questions