Testamentary Freedom in Alberta: What You Need to Know

In Alberta, individuals generally have the right to decide how their property will be distributed after death. This principle, known as freedom of testamentary disposition or testamentary freedom, is a cornerstone of succession law in the province. However, this freedom is not unlimited. Alberta law imposes specific restrictions to ensure fairness, protect family members, and uphold public policy.

Governing Legislation

The Wills and Succession Act (WSA) is the primary legislation governing wills and estate distribution in Alberta. While it respects a person’s testamentary wishes, it also balances those wishes against legal obligations to spouses, dependents, and others.

Limits on Testamentary Freedom

There are several circumstances in which a person’s will may be overridden or modified by the courts:

Family Maintenance and Support

If a testator fails to make adequate provision for certain family members, the court may order support to be paid from the estate. Eligible claimants include:

• Spouses

• Adult Interdependent Partners (AIPs), often referred to as common-law partners

• Dependent children or grandchildren

• Individuals entitled to ongoing child or spousal support at the time of death

The Dower Act

Under Alberta’s Dower Act, a surviving spouse is entitled to a life estate in the family home (the homestead), even if the property was solely owned by the deceased and the will states otherwise.

Matrimonial Property Claims

A surviving spouse may also bring a matrimonial property claim, which can exist alongside any gifts they receive under the will.

Public Policy Restrictions

Courts will not enforce gifts or conditions in a will that violate public policy. For example, provisions based on racial discrimination or those that encourage illegal conduct may be declared invalid.

Lack of Capacity or Undue Influence

A will may be challenged if the testator did not have the mental capacity to understand the nature and consequences of their decisions or if they were subject to undue influence or pressure from another person.

Requirements for a Valid Will

To ensure your testamentary intentions are carried out, a will must generally meet certain legal requirements under the WSA:

Capacity

The testator must be of sound mind and, in most cases, at least 18 years old.

Formalities

A valid will must be in writing and signed by the testator in the presence of two witnesses. An exception exists for holograph wills, which are entirely handwritten and signed by the testator.

Court Validation

Alberta courts have the authority to validate a document that does not strictly comply with formal requirements if there is clear and convincing evidence that it reflects the deceased’s final testamentary intentions.

Why Proper Planning Matters

A well-prepared will can help minimize family conflict, reduce delays, and ensure your estate is administered smoothly. Understanding the limits of testamentary freedom is a crucial part of effective estate planning.

At YYC LegalWills - Paralegal Services we support clients with will preparation assistance, document review, and estate planning guidance—helping you take proactive steps with confidence and peace of mind.

Conclusion

While Alberta law strongly supports an individual’s right to decide how their estate will be distributed, testamentary freedom is not absolute. Legislative safeguards exist to protect spouses, dependents, and broader public interests, and courts retain the authority to intervene where a will fails to meet legal requirements or fundamental fairness. Understanding these limits—and ensuring your will is properly drafted and executed—can help reduce the risk of disputes and ensure your final wishes are respected. Seeking a legal professional when preparing or updating a will is an important step in protecting both your intentions and your loved ones.

Disclaimer

The information provided in this blog post is for general informational purposes only and does not constitute legal advice. Laws may change, and their application can vary depending on individual circumstances. Readers should not rely on this content as a substitute for professional legal advice. If you require advice regarding your specific situation, you should consult a qualified lawyer licensed to practice in Alberta.