Beneficiaries as a witness to a will: The impact and effect of Section 43 of the WESA

July 30, 2020 | Alexander Swabuk

In order for a will to be valid, a will must meet certain formal requirements. These requirements, often referred to as “testamentary formalities,” are relatively standard throughout the common-law world and relatively well-known. In particular, a valid will in British Columbia must be:

(1)(a) in writing, (b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of two or more witnesses present at the same time, and (c) signed by two or more of the witnesses in the presence of the will-maker.[1]

Prior to 2014, the Variation of Wills Act and case law in British Columbia clearly outlined that a gift to a beneficiary was considered void if the beneficiary acted as a witness to the will.[2] This rule, which gave judges no discretion, was instituted as a safeguard against fraud and undue influence. However, the rigid application of this rule often defeated the genuine intention of the testator.

Fortunately, on March 31, 2014, the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”), came into force.

Under s. 43 of the WESA, although a gift to a beneficiary is still considered void if the beneficiary acts as a witness to the will, the court now has the discretion to allow the gift if it is satisfied that the testator intended to make the gift to the beneficiary even though the beneficiary was a witness to the will:

43. Gifts to witnesses

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.

Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).[3]

Subsection 43(4) of the WESA acts as a “saving” provision where there is evidence of testamentary intent. Upon application, courts in British Columbia will examine the impugned testamentary instrument, medical evidence outlining the testators capacity and the circumstances surrounding the execution of the document.  As such, evidence regarding the deceased’s testamentary intent will be crucial in evaluating the validity of a gift to a witness as well as the application of subsection 43(4).

If you have any questions or need advice or assistance regarding a gift to a witness, contact Miller Thomson’s estate litigation team.

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[1] Note: a will that does not comply with subsection (1) is invalid unless (a) the court orders it to be effective as a will under section 58 [court order curing deficiencies], (b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or (c) it is valid under another provision of this Act.

[2] Bird, Re, 2002 BCSC 1584 (B.C. S.C.).

[3] Emphasis added.

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