Legal 271 Exam Preparation Notes

Definition: A trust is an arrangement where one party, A, gives property to another party, B, to hold for the benefit of a third party, C.
Executor as Trustee: The executor of an estate is also considered a trustee, holding the estate’s property in trust for the beneficiaries.
Purpose: Commonly used in wills to protect property intended for minors or irresponsible adults.

Rules Overview: The following rules are essential for a valid will in Alberta:
- Rule #1: Have Capacity
- The testator must understand the nature and impact of creating a will.
- Must be at least 18 years old unless in the military.
- Must meet the Banks v. Goodfellow Test, which requires understanding property ownership and beneficiaries.
- Rule #2: In Writing
- A will must be in writing; verbal or video wills are not valid.
- Rule #3: Signed
- The will must be signed by the testator.
- An “X” can count as a valid signature if intended.
- Under section 19, another person can sign for the testator.
- Rule #4: Intention
- The testator must intend the signed document to be their will.
- Rule #5: Types of Wills
- Formal Will: Must be signed by the testator in front of 2 witnesses, who must also sign.
- Holograph Will: Entirely written in the testator's handwriting.
- Military Wills: Specific rules apply for military personnel.

Conditions for Void Gifts: Gifts in a will can be void if a beneficiary is:
- A witness to the will,
- A person who signs for the testator,
- A translator for the testator,
- Spouse of any of the above.
Executor's Appointment: Being appointed as an executor can lead to consideration as a beneficial disposition.
Validation of Void Gifts: A court may validate a void gift if:
- The testator intended to make the gift,
- The witness did not exert undue influence.

Post-signature Changes: Alterations after signing must follow either formal will or holograph will criteria.
Improper Changes: Changes cannot solely be initialed; they need to meet the same conditions as the original will type.

Revocation Methods:
- Making a new will revokes any prior wills.
- Intentionally destroying the will signifies revocation.
Reviving a Will:
- A will can be revived by re-executing it; it takes effect as of the revival date.

Impact of Marriage: Before the 2012 Wills and Succession Act, marriage automatically revoked a will.
Effect of Divorce: If a will was created before a divorce and not updated, the ex-spouse is considered as having predeceased the testator.
Adult Interdependent Partners (AIPs): In Alberta, defined as:
- Living together for a minimum of three years,
- Cohabitation of some permanence, particularly if they share children.

Validation: A court may excuse deficiencies in a will or gift, making it valid despite formal defects if the testator's intent is clear.
Rectification: Involves changing content in a will, such as correcting a mistaken omission, to reflect the testator's true intentions.

When Intestacy Applies:
- No will exists,
- A will has no valid executors or residual beneficiaries.
Distribution of Intestate Estate:
- Spouse inherits all if no children.
- If children exist, split between spouse and children based on specific shares.
- Hierarchy of distribution when no immediate family is available (e.g., to parents, grandparents, etc.).

Types of Property: Certain properties transfer outside of the estate, including:
- Real Property: Automatically goes to surviving joint tenants.
- Beneficiary Designated Assets: Such as pensions, RRSPs, TFSAs, etc.
No Creditors: Property passing outside the estate is protected from creditors.

Criteria:
- Understanding the nature and extent of property owned.
- Awareness of natural objects of the bounty (beneficiaries).
- Comprehension of the implications of the will.
Capacity vs. Delusion: Testators may have capacity to make a will even if they hold delusional beliefs about family dynamics.

Content: No questions on Powers of Attorney or Personal Directives.
Structure:
- 15 Multiple Choice questions (15 marks).
- 2 Short Answer prompts (18 marks).