WESA: Witnesses and Gifts
The Wills Estates and Succession Act (“WESA”) is the governing legislation with respect to the litigation determining the validity of gifts made in Wills for persons domiciled in British Columbia. One interesting issue that can arise is a beneficiary to a will (meaning someone who receives a gift in the will) is also one of the witnesses to the will. This circumstance can arise when will-makers make their wills at home without the assistance of legal counsel and when they are not aware of the prohibition of witnesses receiving gifts. However, this issue was contemplated in the drafting of WESA and is dealt with in s. 43 of the Act:
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).
This means that a beneficiary to a will who is also a witness can apply to the Court to have the gift recognized as valid by proving that the will-maker did intend to make the gift.
Estate & Wills Litigation Lawyer in Vancouver
If you are the beneficiary to a will or otherwise involved in Estate Litigation, contact the Kushner Law Group today to schedule a consultation.