What If a Beneficiary Witnesses a Will? Is their Gift Invalid?

The Wills, Estates and Succession Act (“WESA”) states at section 40 and 43 as follows:

40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age or older;

(2) A person signing may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43.

(3) A gift in a will is not valid only because a witness was, at the time the will was signed by the will maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

43(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to:

(a)  a witness to the will-maker’s signature or to the spouse of that witness,

(b)  a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c)  a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

 (2)          For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.

(3)          If a gift is void under subsection (1), the remainder of the will is not affected.

(4)          On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

(5)          Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

In sum, under s. 43(4) of WESA, the Court may declare that a gift to a witness who is a beneficiary or his or her spouse is not void, IF the Court is satisfied that the Will-maker intended to make the gift to the person even though the person was a witness to the Will. It is up to the witness to establish the testamentary intent to make a gift to a witness. That being said, it is NEVER a good idea to have a beneficiary under the Will act as one of the witnesses.

Under WESA, a gift to a beneficiary or their spouse is presumptively void if that person was a witness to the Will. However, section 43(4) of WESA gives the Court discretion to declare the gift valid if the Court is satisfied that the Will-maker intended to make the gift.

A beneficiary or their spouse should never witness a Will. If one of them does witness a Will, the gift to the beneficiary (not the Will) will be presumptively invalid. If the Court is satisfied that the Will-maker intended to give the gift, the Court may declare the gift valid.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information real estate matters or estate planning, and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]  Vanessa practices in the area of Real Estate and Wills & Estates at Pushor Mitchell LLP in Kelowna.


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