Beneficiaries as Witnesses to the Will: Is the Will Still Valid?
In order for a British Columbia will to be valid, it must meet the following criteria:
- The will is in writing;
- It is signed by the will-maker;
- The signature is made or acknowledged by the will-maker in the presence of two or more witnesses who are present at the same time;
- Two or more witnesses must sign the will in the presence of the will-maker;
- The will-maker is at least 16 years of age; and
- The witnesses must be at least 19 years old.
But what happens if a witness to the will is also a beneficiary? Does this mean the will is no longer valid? Will it impact the will-maker’s intent? Klein Lawyers explains.
Section 43 of the Wills, Estates and Succession Act: Validity of Gifts in Wills
Under Section 43 of the Wills, Estates and Succession Act (WESA), a gift in a will is void, if the gift is to go to:
- “A witness to the will-maker’s signature or to the spouse of that witness;”
- “A person signing the will by the will-maker’s direction, or the spouse of the person signing;” or…
- “A person claiming under a person, other than the will-maker.”
While this impacts the gift the beneficiary may receive, it does not make the entire will invalid. However, the court may also exercise its discretion in determining the will-maker’s intent. This can ultimately mean the witness/beneficiary will still receive the gift that has been left to them . This requires the use of extrinsic evidence to establish the will-maker’s intent.
Is It a Good Idea to Have a Beneficiary as a Witness to a Will?
In general, no. You should not have the witness of a will also be a beneficiary to the same will. The witnesses will be called upon to establish the testamentary intent of the will-maker, and this can complicate the estate litigation process. In turn, this can leave the court wondering if there had been any outside influence on the will’s creation, be it undue influence, unjust enrichment, etc.
Additionally, the spouse or children of the will-maker should not be witness to the will. Instead, the will-maker should look to disinterested parties to serve as witness.
At Klein Lawyers, we know that the creation of wills is complex. However, when the proper steps are not taken and the will-maker passes away, the wills variation process can cause even more uncertainty to a family.
Questions About a Witness to a Will? Call Klein Lawyers.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.