Wipe Away Will Mistakes – Part 1: Beneficiary-Witnesses
Working with WESA to Wipe Away Will Mistakes – Part 1
Lawyers are often hired to fix avoidable errors and the practice of wills variation and estate litigation is no different. The new Wills, Estates and Succession Act (“WESA”) provides BC lawyers with some handy new tools which can be used to apply to the courts to try to rectify a number of common errors in wills. This two part series will consider the statutory tools provided by WESA and their applicability to real-world wills problems. It is important to note that WESA is still very new legislation and as a result, many of its sections have not received much consideration by the Courts.
How a Beneficiary-Witness May Be Valid Under WESA
Mistake: A person witnesses a will where the contents stipulate that they or their spouse are to receive a gift.
Solution: When someone is a witness to a will (meaning they sign the document after witnessing the testator’s signature), they are normally not allowed to receive a gift in the will and that gift is considered to be void. This same rule applies to the witnesses spouse as well. This can be problematic where a testator wants to make a will in a rush and may not be able to find two non-beneficiary witnesses. S. 43(4) of WESA enables a witness-beneficiary to apply to the Court to declare that the gift is valid. The applicant must demonstrate the will-maker intended to make the gift and there was no pressure or undue influence.
Related Wills Variation Information: