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Potential limitations for being witness to a will

On Behalf of | Apr 11, 2022 | Estate Planning

Many people don’t realize that witnessing a will is often as easy as putting their signatures on the document. In Ontario and the rest of Canada, there are safeguards in the law that protect against undue influence regarding estate planning documents, including the regulation of wills. One of those speaks to who can actually witness a will.

Neutral parties

Section 12(1) of the Ontario Succession of Law Reform Act states witnesses can’t benefit under the will. In other words, if a witness is named in the will to receive a gift of property, that gift will become void while the rest of the will is still valid. Witnesses should be neutral parties and sign the will dispassionately and in an unbiased manner. The rule, however, can also disinherit beneficiaries who innocently and unwittingly agreed to be witnesses.

British Columbia case displays the potential consequences

A prime example of the potential consequences of this situation took place in British Columbia, where a man’s parents acted as witnesses to their son’s will. Neither the son, nor the parents knew the legality that gifts left to witnesses are void. The son, who was not married, died in 2017 and left his estate to his parents, including insurance and pension proceeds with the stipulation they give his two children a portion of the estate when the children turned 25. The man’s father tried to probate the will unsuccessfully, but the Supreme Court of British Columbia eventually ruled the gifts were valid.

Ontario courts have the consideration to allow gifts to a witness when it is satisfied that there was no improper or undue influence exerted upon the testator by the witness. So, Ontario courts could have ultimately reached the same conclusion as that reached in British Columbia. Rather than leaving things to chance in these often-complex situations, having professional support and assistance when creating a comprehensive estate plan, including a will, can prevent future complications like these from arising.

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