It is fairly common for disagreements about an estate’s distribution to arise, both in situations with and without a Will. Estate litigation often involves questions regarding the legality of gifts contained within a Will or the validity of a Will as a whole. Both questions may arise in cases where an individual who witnesses a Will’s signing is also named as a beneficiary under the Will. 

Requirements for a valid will

Under section 37(1) of the Wills, Estates and Succession Act, in order for a Will to be valid, it must be:

  1. In writing;
  2. Signed at its end by the Will-maker (or the signature at the end must be acknowledged by the Will-maker as their signature, in the presence of two or more witnesses at the same time); and
  3. Signed by two or more witnesses in the presence of the Will-maker. Witnesses must be 19 years of age or older.

The Act also provides for electronic Wills, signatures, and witnessing.

Gifts to beneficiaries who are also witnesses to the Will

Witnesses to a Will may receive a gift under that Will. However, section 43 of the Wills, Estates and Succession Act states that the gift is void if it is made to one of the following individuals:

  1. A witness to the Will-maker’s signature or the spouse of that witness;
  2. A person signing the Will by the Will-maker’s direction, or the spouse of the person signing; or
  3. A person claiming under one of the people referenced under (a) or (b) (except for the Will-maker).

Even if a gift falls within these provisions, section 43(4) of the Act states that the court may still declare that a gift is not void and is to take effect. The court may only do so if it is satisfied that the Will-maker intended to make the gift to the person even though the person or their spouse was a witness to the Will.

Deceased son left estate to parents, who witnessed Will

In Wolk v. Wolk, a man signed a “last Will and testament”, leaving his estate to his two parents. At the time of his death, he had an adult daughter and a young child when he died. He had sole custody of the young child. The deceased lived with his parents, except when working on projects out of town. His young child resided with his parents as well. The deceased wanted to leave his estate to his parents, so he set about drafting a Will. It left all his money and property to his parents with the proviso that they, in turn, provide a portion of the estate to his two daughters, either in trust or another protected format such that they receive a stipend when they reach the age of 25.

In the document, the deceased’s older daughter’s last name was typed incorrectly. It was crossed out and written by the deceased’s hand in the document, followed by his initials. The Will was also dated incorrectly. There were four signatures – the deceased, his parents and one other person – each hand-dated with the correct date.

The deceased’s father sought a declaration from the Court that the document was a valid Will and the gifts to the deceased’s parents were also valid and effective. The maternal grandmother of the deceased’s younger child argued that this would prejudice the child.

Supreme Court of British Columbia found Will was valid and successfully amended

The Supreme Court of British Columbia held that the document was a valid Will, signed by the Will-maker in the presence of witnesses who also signed the document. The Court explained that under section 40 of the Wills, Estates and Succession Act, the fact that a signing witness is given a gift under the Will does not affect their capacity to serve as a witness.

The Court was satisfied that the incorrect date was simply an error that went unnoticed at the actual signing. Further, based on the evidence of the witnesses, the Court found that the deceased made the alteration when he signed the document and in the presence of the signing witnesses. Although the witnesses did not sign or note the alteration, it met the requirements of section 54(4)(b) of the Wills, Estates and Succession Act, which provides that an alteration is valid if there is evidence to establish that it was made before the Will was executed.

Gifts to parents declared valid and effective based on evidence of deceased’s intentions

Justice Tucker found that it was readily apparent that the deceased intended for his parents to receive his estate, notwithstanding the fact that they signed as witnesses. The evidence disclosed a close and loving family relationship in which he relied on his parents to take care of his young child. He had also changed the beneficiary designations under his insurance and pension plans to his parents.

The child’s maternal grandmother claimed that the deceased was legally obliged to provide for the child in his Will. Justice Tucker rejected this argument, explaining that it was irrelevant to whether the Will was valid or whether the witnesses were entitled to benefit. The issue of whether a Will adequately provides for a child can only be considered after validity has been determined and can only be considered under section 60 of the Wills, Estates and Succession Act. That section allows the deceased’s spouse or children to apply for a court order if the Will does not make adequate provisions for their proper maintenance and support. As a result, the Court declared that the Will and gifts to the deceased’s parents were both valid.

Contact Meridian Law Group in Vancouver for Skilled Representation in Will Disputes

Meridian Law Group understands that disagreements about an estate’s distribution can be highly emotional. The firm’s experienced estate litigators provide skilled representation and pragmatic advice for clients involved in Will disputes. They help negotiate settlements to minimize stress and preserve relationships as much as possible or prepare and mount vigorous trial strategies to secure their clients’ rights and entitlements.

Located in downtown Vancouver, Meridian Law Group proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your estate matter, please call 604-687-2277 or reach out online.