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

You may have signed your parent's will as a witness and later found out you are also named in it. Or you may be a family member who has noticed that someone who benefits under a will also signed it. Either way, the question is the same: does the gift survive?

Alberta has a specific rule about this, and it has ways around it. This article explains the rule, the two ways a gift can be saved, related witnessing problems that come up in disputes, and how the issue ends up in court. It does not cover how to make a will.

This article covers the law of Alberta.

The basic rule: a gift to a witness is void

Under section 21(1) of the Wills and Succession Act, a gift by will to a witness, or to a witness's spouse or adult interdependent partner, is void as against that person and those claiming through them. In plain words, the gift fails as far as that person is concerned. If the witness has died, their own heirs or beneficiaries cannot step in and claim it either.

The rule is aimed at the gift to the witness. Whether anything else in the will is affected depends on the facts, so it is worth confirming with a lawyer. A witness is also not disqualified from proving the will just because they are an executor or beneficiary, or the spouse or partner of one. So a person named as executor can still give evidence that the will was properly signed.

Two ways the gift can survive

The rule has exceptions. First, the gift is not void if the signature was witnessed by at least 2 other individuals. If the will was signed in front of 2 independent witnesses and a third person who is a beneficiary also signed, the gift to the third person is generally not caught.

Second, the Court can order under section 40 that the gift is not void. The Court looks at whether the testator knew the person was a witness, intended the gift, and whether no improper or undue influence was exercised.

An application under section 40 may not be made more than 6 months after the grant unless the Court extends the period. If you are the witness-beneficiary, this deadline matters, so it is worth getting advice early.

Other witnessing problems families raise

Disputes about a witnessed gift often come with other questions about how the will was signed. These are the common ones:

• Two witnesses must be present at the same time, and each must sign in the testator's presence. The testator's signature must be made or acknowledged in front of both. Failing these formalities is a ground of invalidity.
• Someone may sign for the testator at the testator's direction and in the testator's presence, but a person who signs for the testator cannot witness the testator's signature.
• A witness must have the mental capacity to witness.
• A holograph will must be wholly in the testator's own handwriting and signed by the testator, and it needs no witnesses. The witness-gift rule is therefore a non-issue for a valid holograph will, since nobody witnessed it.

Members of the armed forces on active service can also make a will without witnesses or other formalities.

How the issue reaches court

In Alberta, a person interested in the estate, or a personal representative, can apply to the Court for formal proof of a will, also called proof in solemn form. Formal proof can also be used to set aside a non-contentious (Part 1) grant or to restrain a personal representative. Interested persons include a surviving spouse or adult interdependent partner, adult children, heirs on intestacy, and executors and beneficiaries under the will.

Filing the application stays a Part 1 application. While it is pending, a personal representative under a Part 1 grant may not distribute estate property unless the Court approves or all interested persons consent. The Court can also require formal proof on its own motion, and must state reasons.

These hearings are generally a trial, though they may be in chambers if only death or signing formalities are in issue. The person who took instructions for the will can be required to testify about the instructions, preparation and signing. The Court may decide which will is admitted to probate and direct costs. It may penalize a person who required formal proof if the application was frivolous or vexatious, caused undue delay, or had no substantial basis.

What to do next

Which side you are on changes your first steps, but the starting point is the same: find out who actually witnessed the will and when the grant was issued, because the time limits run from the grant.

• Get a copy of the signed will and note every signature and witness.
• Find out whether at least 2 other individuals witnessed the signature.
• Check the date the grant of probate or administration was issued, and count 6 months from it for a section 40 application.
• If you are a witness-beneficiary, gather anything showing the testator knew you were a witness and meant the gift.
• If you are challenging the gift, hold off on any distribution plans and ask whether formal proof is needed.
• Speak with a lawyer before the 6-month window closes.

Frequently asked questions