Making a Will: Gifts to A Witness – Wiped Out or Salvageable ? – Part 1

When a testator is making a will, it is a common rule in many jurisdictions, including British Columbia that the Will must be witnessed by two people who are not to be beneficiaries. The Witnesses do not need to be lawyers or notaries. Under the previous Wills Act, gifts made to witnesses or the spouses were considered to be void. However under the Wills Estates and Succession Act (“WESA”), a court may make a declaration under Section 43 that gift to a witness valid.

This issue recently arose in the decision of Madame Justice Adair in Re Estate of Le Gallais,

2017 BCSC 1699. In this decision, the testator passed away leaving a substantial estate which was to be split equally amongst 6 charities. The will appointed the solicitor who drafted the document as Executor and provided a clause for which the Executor could charge for her work. The executor was also a witness to the will. The Executor brought an application before the Court for a determination that the charging clause was valid. S. 43 of WESA provides the following:

(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

(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.

In the facts before the Court on this case, 3 charitable beneficiaries consented to the relief sought and 3 were opposed. In part 2 of this blog series, we will review the decision of Madam Justice Adair.

If you are interested in making a will, contact the Kushner Law Group today to schedule a consultation.


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