Can a Beneficiary Who Witnessed a Will Still Inherit in BC?

You may have just read a will and noticed that one of the people who signed as a witness is also named as a beneficiary, or is married to one. That can feel alarming, especially if the gift is large or the will changed shortly before a death.

In British Columbia, this situation is dealt with by specific rules in the Wills, Estates and Succession Act (WESA). This article explains the general rule, the court's power to save a gift, how witnessing can connect to undue influence concerns, and the timing points to watch. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What the rule says about a witness who benefits

Under WESA s. 43(1), a gift in a will is void if it is made to a person who witnessed the will-maker's signature, or to that witness's spouse, unless the court declares otherwise under s. 43(4).

Two points are worth noting. First, the rule is about the gift, not the whole will. Second, it reaches the witness's spouse, and spouse status under WESA s. 2 generally means being married or living in a marriage-like relationship for at least 2 years.

Can the court save the gift?

Yes, in some cases. Under WESA s. 43(4), the court can declare a gift to a witness, or to the witness's spouse, valid if it finds the will-maker intended the gift.

In practice, this means the outcome often turns on evidence about what the will-maker wanted and how the will came to be signed. Who was in the room, who arranged the signing and what the will-maker said to others can all matter. A lawyer can tell you what evidence is likely to be relevant on your facts.

Basic witnessing requirements

A void gift is only one way a signing can go wrong. Formal requirements are separate from mental capacity. Under WESA s. 37(1), a will must be in writing, signed at its end by the will-maker (or the signature acknowledged) in front of two or more witnesses present at the same time, and signed by those witnesses in the will-maker's presence.

Signing witnesses must be 19 or older. Where the signing is disputed, for example a hospital signing, the witnesses are often key evidence.

• Was the will in writing and signed at its end?
• Were at least two witnesses present at the same time?
• Was each witness 19 or older?
• Did the witnesses sign in the will-maker's presence?
• Is any witness, or a witness's spouse, also a beneficiary?

Why a beneficiary-witness can raise undue influence concerns

A beneficiary who helped arrange or witness the signing may prompt questions about pressure on the will-maker. Undue influence is a separate issue from the witness rule, and it can be raised whether or not s. 43 applies.

Under WESA s. 52, if someone claims a will resulted from undue influence and shows the other person was in a position of potential dependence or domination, the party defending the will has the onus of proving that no undue influence was exercised. The challenger goes first: they must show that position of potential dependence or domination and that it was used to influence the will. Without that showing, the ordinary rule applies and the person alleging undue influence or fraud must prove it.

What the court's curing power does not fix

Under WESA s. 58(2)-(3), the court can order a document to be fully effective as a will even though it does not comply with the Act, if it determines the document represents the deceased's testamentary intentions. That is a cure for formal defects. It is not a cure for lack of capacity.

Questions about capacity and undue influence are decided in a formal challenge to the will's validity. That challenge is made by applying to the Supreme Court for an order proving the will in solemn form under Rule 25-15, starting a petition if no existing proceeding fits.

Timing and next steps

A person who receives notice of a probate application may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. Filing one prevents a grant from being issued before the person can apply for an order requiring security. Once a grant is issued, the personal representative must not distribute the estate within the 210 days following the grant, except by court order.

Whether a general limitation period applies to a validity challenge is a question to confirm with a lawyer, so do not assume you have unlimited time. Different claims have different deadlines. For example, a wills variation claim by a spouse or child must be commenced within 180 days from the date the representation grant is issued in British Columbia.

• Get a copy of the will and note who signed as witnesses.
• Check whether any witness or witness's spouse is a beneficiary.
• Write down who was present at the signing and who arranged it.
• Look for a notice of probate application and note the date you received it.
• Speak to a lawyer promptly about a notice of dispute and your options.

Frequently asked questions