Don't Witness a Will if You Are A Beneficiary

And don't let your spouse witness it either.

In British Columbia, a gift in a will to a beneficiary who is one of two witnesses to the will is invalid. In other words, the beneficiary-witness gets nothing, rien, nada. Similarly, if the beneficiary's husband or wife is one of the two witnesses, the beneficiary loses her or his gift. This is set out in s. 11 of the Wills Act, RSBC 1996, c. 489.

The fact that a beneficiary or the beneficiary's legal spouse witnesses a will does not make the rest of the will invalid. Just the gift to the beneficiary is invalid.

In the unlikely event that there is a third witness, the gift is saved.

The court has no power to relieve the unfortunate beneficiary caught by this rule from its harsh effect. Even a gift to the testator’s spouse is invalid if the spouse is one of the two witnesses to the will.

The Succession Law Reform Project Committee in its report for the British Columbia Law Institute, entitled Wills, Estates and Succession: A Modern Legal Framework, is recommending that the court be given the power to grant relief to the beneficiary-witness in some cases. Specifically, under the Committee’s proposals, the court would be given the power to declare that the gift to a witness or his or her spouse is valid if “the court determines that the testator knew and approved of the gift.” I think that this makes good sense.

On the other hand, the Committee’s recommendations would also invalidate gifts to a person who was living in a marriage-like relationship with one of the two witnesses for at least two years when the will was signed. The court would have the power to declare the gift valid as discussed above. But, in some cases, this may create uncertainty over the validity of a gift. It might not always be clear if the witness lived in a marriage- like relationship with the beneficiary for at least two years at the time the will was signed. I question whether the policy reasons for the rule invalidating gifts to witnesses and their legal spouses justify extending the rule to invalidate gifts to people living in a marriage-like relationship with one of the two witnesses.