Gifts to Will Witnesses or Their Spouses

Photo credit: Matthew Chen

Trevor Todd

Prior to the introduction of WESA (Wills, Estates and Succession Act) on March 31, 2014, the law was clear that the Court had no discretion to allow for gifts to a witness of a Will or to his or her spouse.

Estate of Jason M. Bird 2002 BCSC 1584.

The purpose of that rule was to prevent fraud and undue influence but its rigid application often defeated the genuine intention of the testator.

As a result of section 43 WESA, gifts made in such circumstances where a beneficiary or his or her spouse witnesses the Will is still presumptively void but the Courts now have the discretion to declare them valid.

The factual circumstances of where section 43 will usually apply is the homemade Will and not that prepared by a BC Notary or a solicitor.

That is largely due to the effects of section 58 WESA which empowers the Court to order that a document or other record is fully effective as the Will of a deceased person, if the Court is satisfied that the document represents the testamentary intentions of that deceased person.

After verifying the authenticity of the testamentary document, the Courts will focus on what was the intention of the testator in exercising its discretion pursuant to section 43(4) WESA.

At this time there have been three cases decided by the Court relating to section 43 WESA; the Court has allowed the validity of each bequest under section 43 in each case after closely examining the facts and probable intention of the deceased.

1. The first decision was Bach

Estate (Re), 2017 BCSC 548 The testator was predeceased by his wife and was survived by one natural child and two stepchildren. In September 2014, the testator’s sister (the “applicant”) and her husband accompanied the testator to the office of a Notary Public for the purpose of creating a new Will, in which he named the applicant as the sole beneficiary of his estate.

The Notary advised the testator to come back the next day to execute this new Will. After that appointment, the testator had to be hospitalized the same day.

That same evening, the testator signed a document in which he left his entire estate to the applicant. A physician and the applicant’s husband witnessed the document. The next day the testator passed away.

The applicant brought an application for an order that the document be declared a valid Will pursuant to section 37(1) and section 58 WESA and that the gift under the Will be declared valid pursuant to section 43(4) and the application was allowed.

The testator had informed his friend that he wanted to leave his estate to his sister and he had an appointment with a Notary Public for this purpose. Additionally, the physician who witnessed the document stated that the contents of the document were read aloud to him, that the testator agreed with the contents, and that he understood the document was intended to indicate his wishes for the estate.

Based upon all the evidence, the Court was satisfied that the document executed on September 9, 2014, amounted to a Will and represented the testator’s testamentary intent. The gift was not void.

SECTION 43 WESA

The factual circumstances of where section 43 will usually apply is the homemade Will and not that prepared by a solicitor.

The document was handwritten and read:

SEPT. 9, 2014

I TERRENCE ARTHUR BACH

LEAVE ALL MY ASSETS

In full to my sister

Sharon Rose Thibodeau

“T. Bach”

Witness: “E. Willms”

SEPT 9/14

Witness: “R. Thibodeau”

September 9, 2014 The Court’s analysis relied heavily on the section 58 WESA case law that focused on the intention of the testator.

The Court specifically relied upon Yaremkewich Estate (Re), 2015 BCSC 1124, that considered section 58 and the concept of testamentary intent when considering curing deficiencies in a purported Will, stating: [35] In George, the Court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a Will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances. The Court allowed extrinsic evidence to be admitted on the question of testamentary intent under secton 43(5) and stated that the Court is not limited to the evidence that the inspection of a document provides. 2. Wolk v. Wolk 2021 BCSC 1881 reviewed the law of witnesses or their spouses to a Will receiving a gift to them under and the effect of section 43(4) of WESA.

The deceased left the following document:

I leave to my parents, Michael

Dawson Wolk and/or Lynda

Ruth Wolk should they survive me all monies and properties of my estate with the proviso that they in turn provide a portion of the estate to my daughters, Jessica Berens and [E.H.] either in trust or in a protected format such that they will in turn receive a stipend when they reach the age of twenty-five (25) should they also survive me. This includes the repayment of monies to my parents for loans and assistance given me over the years including the overseeing of my daughter [E.H.].

My parents can decide if the money goes to education payments, RRSPs, or a similar portfolio to protect my daughters for later in life.

This is as given by me on this 9th day of September 2016. The beneficiaries of the “Will” witnessed the document.

Under section 40 of WESA, the fact that a signing witness is given a gift under the Will does not affect the capacity to serve as a witness.

Witnesses to Wills

Section 40 … (2) A person may witness a Will even though he or she may receive a gift under it, but the gift may be void under section 43. However a gift to a signatory witness is automatically void by statute, but the Court may declare such a gift valid on application under section 43(4) WESA.

Section 43 of WESA includes the Following.

(1) Unless a Court otherwise declares under subsection (4), a gift in a Will is void if it is to (a) a witness to the Will-maker’s signature or to the spouse of that witness, … (2) For the purposes of subsection 1, the relevant time for determining whether one person is the spouse of another is the time when the

Will is made. (3) If a gift is void under subsection (1), the remainder of the Will is not affected. (4) On application, the Court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the Court is satisfied that the

Will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the Will. (5) Extrinsic evidence is admissible for the purposes of establishing the Will-maker’s intention under subsection (4). The Court followed the Re. Bach estate decision finding that section 43(4) is centrally concerned with testamentary intent.

The Court was further concerned that absent a declaration

...intention means much more than the expression of how a person would like his or her property to be disposed of after death.