A Beneficiary Witnessed the Will: Does It Affect Probate in Ontario?

Families often discover the problem after the funeral: the person who signed as a witness to the will is also a beneficiary, or is married to one. The immediate question is whether the gift is lost and whether the will can still be probated.

This article focuses on what you can say with confidence about how the probate application proceeds, and where the answer depends on the details of your file. It does not set out the rule on whether a particular gift survives, because that turns on the statute and the facts and is worth confirming with a lawyer.

Two separate questions

There are really two questions here. The first is whether the will can be proved and a certificate obtained. The second is what happens to the gift left to the person who also acted as a witness. The first is a probate process question. The second is a question about the effect of the law on that gift.

Families sometimes merge the two and assume that a witness who is a beneficiary makes the whole will invalid. That is not something you should assume. How the will was signed and what that means for the gift depends on the document and the facts, and a lawyer can review the actual will and tell you where you stand.

How the application proceeds

Probate is applied for in the Superior Court of Justice: a Small Estate Certificate if the estate is valued at up to $150,000, otherwise a Certificate of Appointment of Estate Trustee. The application includes the original will and any codicil, proof of death and the required forms.

The affidavit of execution, Form 74D, is part of that package. How the witnesses appear in the application, and who sees that information, depends on your file, so it is worth confirming with a lawyer.

Why this matters to other beneficiaries

Each beneficiary must receive a copy of the signed application. Whether other family members will learn who witnessed the will depends on what is in the application you serve, so it is worth confirming with a lawyer. Someone who would benefit if a gift fails may raise the issue. If an objection is filed on Form 75.1, the applicant must serve Form 75.3 on the objector.

If a judge has to decide an issue, processing takes longer than the typical 15 business days. Planning for that possibility is more realistic than assuming a smooth path.

• For a minor beneficiary, the Children's Lawyer must be served on an application to appoint an estate trustee.
• For an incapable adult, service goes through their fiduciary with authority to act, or on both the Public Guardian and Trustee and the individual if there is none.
• Serve one copy on the Children's Lawyer even if there are several minors, and also serve each minor's parent or guardian.

Tax and reporting still apply

There is no tax on an estate valued at $50,000 or less. Over $50,000, the tax is $15 per $1,000 (or part thereof) of the estate value, applied to the amount above the first $50,000, with the value rounded up to the nearest $1,000. The tax is paid as a deposit when applying and becomes the tax once the certificate is issued.

An Estate Information Return is due within 180 calendar days of the certificate being issued, even if no tax is payable. Keep your supporting records for four years.

What to do next

• Get a clear copy of the will and note every witness, and whether any is a beneficiary or the spouse of one.
• Before distributing the gift in question or any other estate asset, talk to a lawyer about whether it is safe to do so.
• List all beneficiaries and last known addresses for service.
• Ask a lawyer what the signing means for the gift and how to present it in the application.
• Prepare for the possibility of an objection and a longer timeline.
• Estimate the estate value for the tax deposit.

A lawyer can read the will and the signing details and explain the position for each beneficiary before you file.

Frequently asked questions