Beneficiary Who Witnessed the Will Loses Their Gift in Ontario

Sometimes a family discovers that a person named in a will also signed it as a witness, or that a beneficiary's spouse did. That can put the gift in doubt, and it often comes up only after the death, when it is too late to change the document.

This article explains what the Succession Law Reform Act says about witness-beneficiaries, what the exceptions are, and what the estate trustee and the beneficiary can do. Because the outcome depends on who signed and how, a lawyer can confirm how the rule applies to a particular will.

The basic rule

Under the Succession Law Reform Act, if a person who witnesses a will, or that person's spouse, is a beneficiary, the gift to them is void. The reasoning is a protective one: a person who benefits from a will should not also be the independent person vouching for how it was signed.

The rule applies to the gift to the witness or the witness's spouse only. The rest of the will stays valid. Other beneficiaries still receive their gifts, and the estate trustee still carries out the remaining wishes in the will.

Exceptions that can save the gift

The rule is not absolute. There are three main ways the gift can survive.

Who the other witnesses were, and whether they are beneficiaries or the spouses of beneficiaries, matters. Whether an exception fits a particular will depends on the facts, so it is worth confirming with a lawyer.

Who is affected in practice

• A beneficiary who signed as a witness may lose their own gift.
• A beneficiary whose spouse signed as a witness may also lose the gift, because the rule covers the witness's spouse.
• Other beneficiaries are not affected, because only that gift fails.
• A person who signed alongside two other independent witnesses may keep the gift.

If a gift is void, what happens to that property depends on the rest of the will and the circumstances. A will may name a backup beneficiary or a residue clause, or the property may pass in another way, so this is worth confirming with a lawyer.

Asking the court to save the gift

If the other exceptions do not apply, the gift is saved if the Superior Court of Justice is satisfied that neither the witness nor their spouse exercised improper or undue influence on the testator. How that question is brought to the court depends on your situation, so it is worth confirming the steps with a lawyer. Keeping any records of how the will was prepared and signed can help a lawyer look at the question.

The question for the court centres on influence: whether the witness or their spouse exercised improper or undue influence on the testator. If the gift is not saved, only that gift fails, and the rest of the will stays valid. Because the answer turns on the evidence about how the will came to be made and signed, it helps to raise the question with a lawyer early, before the estate trustee distributes the estate.

A person who appears to have a financial interest in an estate may also move for an order requiring the estate trustee to pass accounts. That is a separate step from the witness issue, but it can matter if the estate is being managed in a disputed way.

What to do next

• Get a copy of the signed will and look at every witness signature.
• List who each witness is and whether they, or their spouse, are named as a beneficiary.
• Check whether at least two other independent witnesses signed.
• Check whether the will is a holograph will, where no witnesses are needed.
• Gather anything showing how the will was prepared, in case undue influence is raised.
• Speak with a lawyer before the estate trustee distributes the disputed gift.

Frequently asked questions