Is it appropriate for a beneficiary in a will to witness the execution of that will? The law in B.C. presumes that a gift to the witness of a will or their spouse is void, unless the court declares otherwise.
To be valid in B.C., a maker-maker must sign their will or acknowledge their signature in the presence of two or more witnesses present at the same time, and those witnesses must also sign the will in the presence of the will-maker (but keep in mind the recent changes to allow electronic wills in B.C., discussed here).
Section 40(2) of the Wills, Estates and Succession Act provides that “a person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43.” Section 43 provides that “unless the court otherwise declares”, a gift in a will is void if it is to a witness to the will-maker’s signature or the spouse of that witness. On application, the court may declare that such a gift 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.”
The B.C. Supreme Court recently considered this issue in Wolk v. Wolk 2021 BCSC 1881. In Wolk, the deceased left his estate to his parents. His parents were two of the three witnesses to the will. The will explained the purpose of the gift, which including making that the parents were expected to make provision for the will-maker’s daughters.
The issue for the court was whether the gift to the parents was void since the parents witnessed the signing of the will. The central concern is testamentary intent: what did the will-maker actually intend? Extrinsic evidence is admissible for establishing the will-maker’s intention.
In Wolk, it was “readily apparent” that the will-maker intended for the two witnesses to receive his estate even though they signed as witnesses. The will-maker “expressly articulated” the basis for the gift in the will. The will-maker also changed his beneficiary designations to make similar provision for his parents. The Court concluded that the gifts to the will-maker’s parents were valid, even though the parents signed as witnesses.
If possible, a will-maker should arrange for witnesses who are not beneficiaries under the will, as the presumption is that any gift to a witness is void. However, this may not be practicable. There may be no one else available, or there may be urgency (i.e. a will made on the will-maker’s deathbed). If it cannot be reasonably avoided and a named beneficiary must witness the will, there is a remedy, but it is an added complication and of course there is no guarantee that an application to declare the gift valid will be successful.