Written on June 24, 2016 – 10:06 am | by Katie Ionson
Two witnesses are sometimes hard to find. In a pinch, could an individual who is appointed as an executor under a Will act as a witness to that Will?
In Ontario, the rules governing the formalities of Wills, including the eligibility of witnesses, are set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). Section 14 of the SLRA states that an executor can be a competent witness to a Will. As a result, a Will is not invalid only by reason that an executor acted as one of the two witnesses to the Will.
In some cases, that may be the end of the story. However, if the Will includes provisions for executor compensation, consider the potential effect of section 12 of the SLRA. This section creates a rebuttable presumption of undue influence where a person who is a beneficiary under a Will, or the person’s spouse, acts as a witness to the Will. If this presumption is not rebutted, all gifts to the beneficiary and the spouse will be void. Section 12(1) reads as follows:
Bequests to witness void
- (1) Where a will is attested by a person to whom or to whose then spouse a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debts, is thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it concerns,
(a) the person so attesting;
(b) the spouse; or
(c) a person claiming under either of them,
but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.
Section 12(3) allows for the rebuttal of the presumption of undue influence:
(3) Despite anything in this section, where the Superior Court of Justice is satisfied that neither the person so attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the devise, bequest or other disposition or appointment is not void.
The wording in Section 12 is broad: “a beneficial devise, bequest or other disposition or appointment of or affecting property”. Arguably, it is broad enough to potentially apply to executor compensation provisions (particularly where compensation is on the generous side). As a result, where an executor acts as a witness to a Will, there may be a risk that executor compensation provisions in the Will could be void insofar as they apply to that executor.
But what if no other witness is available? Or what if the Will has already been signed with the potential executor as the witness? The presumption of undue influence created by section 12 of the SLRA is rebuttable and the risk that it applies to executor compensation is just that (a possibility and not a certainty). To help with rebutting the potential presumption of undue influence, one might consider preparing an affidavit of execution explaining the reasons for having the executor act as witness (e.g. there was no one else available) and affirming that the testator signed the will voluntarily and free from undue influence. Hopefully, this is a strategy of last resort.