Can a Witness to a Will Inherit Under It in Alberta?

Sometimes a person who is named in a will, or who is married to someone named in it, signed the will as a witness. Often nobody thought about it at the time. Once the person has died, the family wants to know whether that gift still stands.

In Alberta the Wills and Succession Act deals with this directly. The answer depends on who else witnessed the will, and on whether anyone asks the Court to confirm the gift. This article explains the rule, the two ways around it, and how the issue can come up in a dispute.

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 anyone claiming through them. In plain words, the witness cannot take the gift, and neither can their family members who would inherit through them.

The rule says the gift is void as against that person and those claiming through them. Whether anything else in the will is affected depends on the situation, so it is worth confirming with a lawyer. A witness is also not disqualified from proving the will only because they are an executor or a beneficiary, or the spouse or partner of one. So the person can still give evidence that the will was properly signed, even though their own gift may be at risk.

Two ways the gift can be saved

The rule has exceptions. The gift is not void if the signature was witnessed by at least 2 other individuals. This is why it matters how many people signed as witnesses, not only who they were.

The second route is a court order. Under section 40, the Court may order that the gift is not void if the testator knew the person was a witness, intended the gift, and no improper or undue influence was exercised.

The 6-month deadline for a court application

An application under section 40 may not be made more than 6 months after the grant unless the Court extends the period. The grant is the Court document, such as a grant of probate or administration, that confirms the personal representative's authority. Because the time runs from the grant and not from the death, it is worth checking the date on the grant early.

If the 6 months has already passed, the Court can extend the time, but that is not automatic. Whether an extension is realistic depends on the facts, so it is worth getting legal advice quickly.

The basic witnessing rules

Most problems arise because the signing did not follow the formalities. A formal will must be in writing, and the testator's signature must be made or acknowledged in the presence of 2 witnesses who are both present at the same time. Each witness must sign in the testator's presence. Failing these formalities is a ground of invalidity.

• A witness must have the mental capacity to witness.
• Another person may sign for the testator at the testator's direction and in the testator's presence, but that person cannot witness the testator's signature.
• A holograph will, which is wholly in the testator's own handwriting and signed, needs no witnesses.
• A member of the armed forces on active service may make a will without witnesses or other formalities.

If the will is a holograph will, there are no witnesses, so the witness-gift rule is not in play. The handwriting and signature requirements apply instead.

How the issue arises in a contested estate

A witness problem often shows up as part of a larger dispute. Someone who doubts the will can file a caveat, which is the Alberta way to stop a grant from issuing. A caveat is filed in Form C3. Anyone may still apply for a grant despite a caveat, but no further steps can be taken on that application until the caveat expires, is discharged or withdrawn, or is otherwise dealt with. A caveat lasts 3 months from filing unless it is discharged, withdrawn, or the Court orders otherwise.

Another route is formal proof of the will, also called proof in solemn form. A personal representative or a person interested in the estate may apply under Surrogate Rule 75. Filing that application stays a Part 1 application. For a Part 1 application, the Court may also require formal proof on its own motion and must give reasons. At the hearing, the person who took instructions for the will can be required to testify about the instructions, preparation and signing. Formal proof is listed as a contentious matter, and a contentious matter may be brought under Part 2 by filing Form C1 with an affidavit in Form C2.

What to do next

• Find the will and check who signed as witnesses and how many there were.
• Note whether any witness, or a witness's spouse or partner, receives a gift.
• Find the date the grant was issued and count 6 months from it.
• Collect anything showing the testator knew the person was a witness and meant the gift.
• Speak with an Alberta lawyer before distributing any estate property or filing anything with the Court.

A lawyer can confirm whether the gift is at risk, whether the 2-other-witnesses exception applies, and whether a section 40 application makes sense on your facts.

Frequently asked questions