Is a Gift Void If a Beneficiary Witnessed the Will in BC?

You may be reading a will after a death and notice that one of the people who signed as a witness is also a beneficiary, or is married to one. That can feel alarming, especially if you already worry that someone pressured the will-maker.

In British Columbia, the Wills, Estates and Succession Act (WESA) has a specific rule for this situation. This article explains what the rule does, how a court can set it aside, and how it differs from questions about capacity and undue influence.

This article covers the law of British Columbia.

The basic rule: a gift to a witness is void

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

Only the gift is affected. The rule is about the gift to the witness or the witness's spouse. It does not by itself say the rest of the will fails. Whether a spouse counts depends on the Act's definition: people are spouses if both were alive immediately before the relevant time and were married or lived in a marriage-like relationship for at least 2 years.

When the court can declare the gift valid

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. This matters where a beneficiary happened to witness the will, often without understanding the consequence.

The outcome turns on the facts and the evidence of what the will-maker intended. Because the result is not automatic either way, a person who stands to gain or lose from the gift should get legal advice early.

How this differs from signing rules, capacity and undue influence

Several different questions can be raised about a will, and they are decided separately. It helps to keep them apart.

A beneficiary witnessing the will does not mean the will-maker lacked capacity or was unduly influenced. It also does not prove the opposite. Each question needs its own evidence.

Undue influence, capacity and what a court can fix

Under s. 52, the person challenging the will must first show that another person was in a position of potential dependence or domination over the will-maker and that this position was used to influence the will. Only then must the person defending the will prove that no undue influence was exercised. Without that first showing, the person alleging undue influence or fraud generally carries the burden of proving it.

Where suspicious circumstances relate to mental capacity, the person propounding the will must establish that the will-maker had capacity.

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

What to do next

• Get a copy of the will and note who signed as witnesses and who the beneficiaries are.
• Write down what you know about the signing: where it happened, who was present, and the will-maker's health at the time.
• If you want to oppose the grant, a person who receives notice of a probate application may file a notice of dispute (Form P29) under Rule 25-10. Filing prevents a grant from being issued before the person can apply for an order requiring security.
• Remember the personal representative must not distribute the estate within the 210 days following the grant, except by court order, which gives a window to act.
• Speak to a lawyer promptly about your position and about timing, since deadlines depend on the type of claim.

A notice of dispute is one way to raise concerns before a grant. A formal challenge to validity is made by applying to the Supreme Court for an order proving the will in solemn form.

Frequently asked questions