Handwritten Wills in Alberta: Section 16 and the Form GA9 Affidavit

Over Thanksgiving leftovers on a farm east of Red Deer, a 68-year-old grain farmer hands his son four ruled pages written in pencil. "That's my will," he says. "Your mother and I sorted it out last winter." The son, who will one day be the executor, reads it twice and then asks something his father had not considered: when the time comes, who is going to tell a judge this is really Dad's handwriting?

That question sits at the heart of how Alberta deals with handwritten wills. The statute makes writing one straightforward, and the court rules then ask the family to prove whose hand it was. This guide covers both halves, plus the age rule and what happens when a handwritten page gets edited. For a comparison across the country, our guide to holograph wills in Canada is the place to start.

What section 16 of the Wills and Succession Act says #

Alberta's Wills and Succession Act (the WSA) recognizes three ways to make a will, in sections 15, 16 and 17. Section 16 is the handwritten one. It permits a will made by a writing "wholly" in the testator's own handwriting, signed by the testator, with no witness present or signing and no other formality.^[NaN]

Read slowly, that sentence asks for two things. The writing should be wholly the testator's own handwriting, and the testator should sign it. Witnesses, a lawyer, a commissioner for oaths or any other ceremony are not part of the section 16 route.

Section 14 sits on top of that and applies to every will. It says a will generally must be in writing, must carry a signature that makes it apparent the testator intended, by signing, to give effect to the document as their will, and must be made under section 15, 16 or 17, subject to any court order under section 37.^[NaN] The farmer's pencilled pages tick the writing box. The signature should leave no doubt that he meant the pages as his will, which is one reason people tend to sign at the end, after the last instruction.

The age to make a will in Alberta #

Section 13 sets the starting point at 18. A person who is 18 or older and has the mental capacity to do so may make, alter or revoke a will.^[NaN]

Someone younger may still make a will in narrower cases. Under section 13(2), a person under 18 with capacity may generally do so if they have or have had a spouse or adult interdependent partner, are certain members of the Canadian Forces, or are authorized by a court order under section 36.^[NaN] The handwritten form neither widens nor narrows those exceptions.

Edits after signing: what section 22 presumes #

Months after Thanksgiving, the son noticed the farmer had pencilled in a new line about the half-section of pasture and drawn an arrow to it. Alberta's statute has a firm default for marks like that.

Section 22(1) says any writing, marking or obliteration made on a will "is presumed to be made after the will is made." It then says such a change is valid as an alteration only if, "(ii) in the case of a will made under section 16, the alteration is made in accordance with that section, or (iii) the Court makes an order under section 38 validating the alteration."^[NaN]

In plain terms, an addition to a handwritten will generally needs to meet the section 16 test itself, which points to the will-maker writing and signing the change. Otherwise the change stands only if the Court validates it by an order under section 38.^[NaN] Arrows, margin notes and pencil additions without a signature can turn an otherwise tidy will into a court application.

When the paper falls short: section 37 #

Sometimes a document intended as a will misses one of the requirements. Section 37 allows the Court, on application, to order that a writing is valid as a will despite not being made in accordance with section 15, 16 or 17. The standard is proof "on clear and convincing evidence" that the document captures the testator's testamentary intentions.^[NaN]

That is a meaningful standard of proof, and the word is "may." Section 37 is a remedy a family can ask for after the fact, not a reason to cut corners while you are still able to get the document right.

Proving the handwriting: the "other than the applicant" rule #

This is where the son's question lands. Alberta's Surrogate Rules govern applications for a grant of probate. Rule 16(4) says that if a will is a holograph will, "a person other than the applicant, unless otherwise ordered by the court, must prove the deceased's handwriting by filing an affidavit in Form GA9," with the original will as an exhibit.^[NaN]

The phrase "other than the applicant" deserves attention. The executor who applies for the grant generally cannot be the one who swears to the handwriting. Somebody else has to do it, unless the court orders otherwise.

Form GA9 is titled "Affidavit of Handwriting." In it, the person swearing states that they knew the testator well, that they are very familiar with the testator's handwriting and signature, and that they believe the whole of the will, including the signature, is in the testator's handwriting.^[NaN]

For the Red Deer family, the son is the likely applicant, so a different person would ordinarily swear the GA9. That might be his mother, a sibling, or a longtime neighbour who has seen years of the farmer's cheques and letters. It is worth thinking about early who could truthfully say those words. Our Alberta executor guide explains where this affidavit fits in the larger grant application.

Habits that make a handwritten will easier to prove #

None of these habits is a legal requirement, but each tends to make life easier for the people who will one day handle the document:

• Use ink rather than pencil, so the writing does not smudge or fade over the years.
• Write out full names for every person you mention, and describe property in a way a stranger could recognize.
• Number the pages and sign at the end of the last one, so it is plain where the will finishes.
• Keep stray thoughts in a separate notebook rather than on the will itself, since section 22 presumes any later marking came after the will was made.^[NaN]
• Let the person you would expect to swear the GA9 know that your will is handwritten, so the request does not come as a surprise.

The farmer's pencilled pages, for instance, may be much harder to read decades from now than the same words in ink.

Is a handwritten will the right choice for you? #

Section 16 is a real option in Alberta, and for a short, simple set of wishes some people find it workable. A few honest questions can help you decide:

• Would someone other than your executor be able to swear, from long familiarity, that the handwriting is yours?
• Is every word in your own hand, consistent with the statute's "wholly"?
• Are your instructions specific enough that a stranger could follow them?
• Are you likely to keep adding notes, each of which section 22 will presume came later?

If those questions give you pause, a witnessed will may suit you better. Our Alberta will-writing guide sets out the witnessed signing, and the Alberta wills page describes what we do for Albertans.

Keeping the pages safe and findable #

A handwritten will is only useful if the original survives and someone knows where it is. Our suggestion is to store the signed original in a safe at home and keep a copy in a safety deposit box at your bank, then let your executor know about both.

When you are ready to put your wishes into a typed will that you sign with witnesses, you can start building your will with It's Simple Will at your own pace.