All About Estates

Potential Cost of Witnessing a Will

Across Canada, the provinces have built multiple safeguards against undue influence into their law regulating wills. One common rule is that witnesses cannot benefit under the will: if the witness or the witness’ spouse receives a gift of property under the will, that gift is void (although the rest of the will remains valid).[1] This rule helps ensure that witnesses are neutral parties who can observe the circumstances of the will signing in a dispassionate and unbiased manner. Unfortunately, this rule also has the potential to disinherit innocent beneficiaries who unwittingly agree to act as witnesses to the will. This was the situation before the Supreme Court of British Columbia in Wolk v Wolk, 2021 BCSC 1881.

Section 43 of BC’s Wills, Estates and Succession Act, SBC 2009, c 13 declares that any gift to a person (or that person’s spouse) who acted as a witness to the will is void. Unbeknownst to Dawson or his family, Dawson’s parents violated this rule when they agreed to act as witnesses to their son’s will.

Dawson Wolk died in 2017. Dawson was not married and had been living with his parents since 2015 while he recovered from substance abuse issues. The court found that living with his parents gave Dawson the stability and support he needed to stay in recovery. Dawson’s parents also helped him pay off his debts and were the primary caregivers of Dawson’s youngest daughter, of whom he had sole custody.

In September 2016, Dawson told his parents how grateful he was for their support, both financial and emotional. He let them know that he intended to leave them his estate as thanks for everything they had done for him. Dawson then produced a typed will which purported to leave the entirety of his assets, including insurance and pension proceeds, to his parents with the provision that they give his two daughters a portion of his estate when they turned 25. Dawson and his parents proceeded to sign the will.

After Dawson’s death in July 2017, his parents continued to look after his youngest daughter. However, Michael’s attempts to probate Dawson’s will were rejected, leading him to seek a declaration from the court that Dawson’s will was valid and to reinstate the gifts to him and his wife.

The court held that the will met all the formal statutory requirements of a valid will. The court further held that the gifts to Dawson’s parents in the will were valid. The court made this declaration after finding that the gifts in Dawson’s will accurately reflected his intention to benefit his parents as thanks for their support and the care they provided to his youngest daughter.

Would the same result have been reached if Dawson’s estate was administered in Ontario? Sub-section 12(3) Ontario’s Succession Law Reform Act, RSO 1990, c S.26 gives the court the discretion to allow gifts to a witness to a will where the court is satisfied that the witness did not exercise any “improper or undue influence upon the testator.” As a result, the Ontario courts could have considered the same arguments and evidence as was placed before the courts in BC and may have reached the same conclusion.

[1] See s. 12(1) of Ontario’s Succession Law Reform Act, RSO 1990, c S.26.

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About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. gfournie@devrieslitigation.com

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