I recommend to clients that if they own property in another jurisdiction, whether it be in Manitoba or Monaco, that they check with a lawyer in that jurisdiction to see if their Alberta will is worth the paper it’s written on in that particular jurisdiction. But what about Alberta? Is a will drafted in a foreign jurisdiction recognized in Alberta?
Whether a will prepared outside of Alberta is recognized in Alberta depends on a few different factors:
whether the will deals with land in Alberta,
whether the will deals with land outside of Alberta, and
whether the will deals with property other than land.
If the will deals with land in Alberta, it must comply with the formalities of an Alberta will. It’s not so much an issue of where the will was prepared; instead the important issue is whether the will complies with the formalities of an Alberta will.
If a will deals with land outside of Alberta, then it must comply with the formalities of the place where the land is located. For example, if a will deals with a condo in Tokyo, that will must comply with Japanese legal formalities.
If a will deals with property other than land, then it must comply with the formalities of the place where the testator (the person doing the will) was living at the time of completing the will or of the place where the will was made. To provide evidence that a will complies with the legal formalities of a foreign jurisdiction, an executor wishing to probate a will in Alberta may have to provide evidence about the law in that other jurisdiction.
Alberta also recognizes international wills, which are wills prepared pursuant to an international convention. It should be noted that very few countries are signatories to this international convention, so the use of international wills in Alberta is not very common.
As a rule of thumb, wills that are drafted in jurisdictions where the law is based on historical common law principles will likely be recognized in Alberta. For example, a will drafted in the UK will likely satisfy Alberta’s formalities for wills because Alberta law traces its roots to the law of England.
At any rate, if you are living in Alberta, I would recommend completing a will in Alberta. Even if your foreign will is recognized in Alberta, your estate may have to go to great lengths and spend a small fortune to prove that your will complies with the law of another country. If your will is in another language, it will have to be translated to be used in Alberta. Furthermore, while your foreign will may be recognized in Alberta, foreign equivalents to an enduring power of attorney or a personal directive may not be recognized. For these reasons, engaging in estate planning in Alberta is likely worth it in the long run.